The Administrative Agent. Each of the Lenders and Issuing Lenders hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative 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 and thereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 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 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, 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 Borrowers or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) 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 by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and 9.02), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the 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, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 7.02 and 9.02) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable 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 Company, another Borrower, a Lender or an Issuing Lender. The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Sherwin Williams Co), Credit Agreement (Sherwin Williams Co)
The Administrative Agent. Each of the Lenders and Issuing Lenders hereby irrevocably appoints Citibank, Xxxxxx (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder administrative agent and under the other Loan Documents collateral 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 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 the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers Loan Parties or any Subsidiary subsidiary of a Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and without acknowledge that the Administrative Agent shall not be under any duty obligation to account therefor provide such information to the Lendersthem. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuingcontinuing and without limiting the generality of the foregoing, the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law and instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties, (b) the 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 in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action (i) unless indemnified to its satisfaction by such Lenders against any and all liability and expenses that may be incurred by it by reason of taking or continuing to take any such action (including any action under the Proceeds Agreement), and/or (ii) that, in its reasonable opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawlaws, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company any Loan Party or any of its Subsidiaries that is communicated to or obtained by the 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, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct as determined by the final judgment of a court of competent jurisdiction by final jurisdiction, in connection with its duties expressly set forth herein. Any consent, instructions, and nonappealable judgmentrequest of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary) and any action or inaction pursuant thereto shall be binding on all Lenders. The Administrative Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by either Borrower or any Lender, and the Company, another Borrower, a Lender or an Issuing Lender. The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of Liens on the Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere hereinin 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 uponor (vii) the properties, and shall not incur books or records of 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender Loan Party or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of 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 AgentAffiliate thereof. The Administrative Agent shall not be responsible for insuring the negligence Collateral, for the payment of taxes, charges, assessments or misconduct of any sub-agents except liens upon the Collateral or otherwise as to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent maintenance of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunderCollateral. The Administrative Agent shall not be responsible under an obligation independently to request or have examine insurance coverage with respect to any liability forCollateral. The Administrative Agent shall not be liable for the acts or omissions of any bank, depositary bank, custodian, independent counsel of the Borrowers or the Ad Hoc Group Advisors or any other party selected by the Administrative Agent with reasonable care or selected by any other party hereto that may hold or possess Collateral or documents related to Collateral and shall not be required to monitor the performance of any such Persons holding Collateral. If any Lender acquires knowledge of a Default or Event of Default, it shall promptly notify the Administrative Agent and the other Lenders thereof in writing. Each Lender agrees that, except with the written consent of the Administrative Agent (as directed by the Required Lenders), it will not take any enforcement action hereunder or under any other Loan Document, accelerate the Obligations under any Loan Documents, or exercise any right that it might otherwise have under applicable law or otherwise to credit bid at foreclosure sales, UCC sales, any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality sale under section 363 of the Bankruptcy Code or other similar dispositions of Collateral. Notwithstanding the foregoing, however, a Lender may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations held by such Xxxxxx, including the filing of proofs of claim in a case under the Bankruptcy Code. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, the Borrowers, the Administrative Agent and each Secured Party agrees that (i) no Secured Party shall not have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty, it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative Agent, on behalf of the Secured Parties in accordance with the terms hereof and all powers, rights and remedies under the other Loan Documents may be exercised solely by the Administrative Agent in accordance with the terms hereof and in the other Loan Documents, and (xii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other disposition (including pursuant to section 363 of the Bankruptcy Code), (A) the Administrative Agent, as agent for and representative of the Secured Parties, at the direction of the Required Lenders, shall be obligated 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 sale, to ascertain, monitor use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent at such sale or inquire as to whether other disposition and (B) Administrative Agent or any Lender may be the purchaser or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out licensor of any assignment or participation all of Loanssuch Collateral at any such sale or other disposition. Each of the Lenders hereby irrevocably authorizes the Administrative Agent, or disclosure on behalf of confidential informationall Secured Parties to take, subject to any Disqualified Institution. It is agreed that limitations in the Syndication AgentOrders, any of the Co-Documentation Agents and following actions upon the Joint Lead Arrangers shallwritten instruction of the Required Lenders, in their capacities as such, have no duties which the Administrative Agent may conclusively rely on without investigation or responsibilities under this Agreement.liability:
Appears in 2 contracts
Samples: Credit Agreement (Party City Holdco Inc.), Credit Agreement (Party City Holdco Inc.)
The Administrative Agent. In order to expedite the transactions contemplated by this Agreement, JPMorgan is hereby appointed to act as the Administrative Agent on behalf of the Lenders. Each of the Lenders and Issuing Lenders hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf of such Xxxxxx and to exercise such powers as are specifically delegated to the Administrative Agent by the terms and provisions hereof and thereofthe other Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect The Administrative Agent is hereby expressly authorized by the other parties hereto, without hereby limiting any implied authority: (a) to receive on behalf of the Lenders all payments of principal of and interest on the Loans and promptly distribute to each Lender its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the consent rights Borrower of any Event of Default of which the Company relating Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to a successor agent distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement or any other Loan Document as received by the Administrative Agent. The Administrative Agent shall not have any duties or obligations except those expressly set forth belowin the Loan Documents, the provisions of this Article are solely for the benefit and its duties hereunder shall be administrative in nature. The motivations of the Administrative AgentAgent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing, (a) the Lenders, and the Issuing Lenders and the Borrowers Administrative Agent shall not have rights as be subject to any fiduciary or other implied duties, regardless of whether a third party beneficiary of any of such provisions. It Default has occurred and is continuing (and 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 law, and that such term is used as a matter of market custom, custom and is intended to create or reflect only an administrative relationship between contracting parties. 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 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, 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 Borrowers or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent (a) 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 powerspower, 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 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 Sections 7.02 and 9.02the Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counselopinion, may could expose the Administrative Agent to liability or that is 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 Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawlaw, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries Subsidiary or Affiliate thereof that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates or Related Parties in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall to be necessary, under the circumstances as provided in Sections 7.02 and 9.02) or in the absence Loan Documents). Neither the Administrative Agent nor any of its Related Parties shall be liable for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct misconduct, as determined by a court of competent jurisdiction by a final and nonappealable judgment, or be responsible for any statement, warranty or representation made in or in connection with any Loan Document or the contents of any document delivered in connection herewith or therewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement or any other Loan Document (including concerning the satisfaction of any condition set forth in Article V or elsewhere in any Loan Document, other than to confirm receipt of items (which on their face purport to be such 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) or the occurrence of any Default. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by the Company, another Borrower, a Lender Borrower or an Issuing any Lender. The Administrative Agent shall not be responsible to the Lenders for or have any duty to ascertain or inquire into (i) any statementthe due execution, warranty or representation made in or in connection with this Agreement or any other Loan Documentgenuineness, (ii) the contents of any certificatesufficiency, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, enforceability or effectiveness or genuineness of this Agreement, any other Loan Document or any other agreementinstruments or agreements. The Administrative Agent may deem and treat the Lender that makes any Loan as the holder of the obligations resulting therefrom for all purposes hereof until the Administrative Agent shall have received notice from such Lender, instrument or documentgiven as provided herein, of the transfer thereof. The Administrative Agent shall in all cases be fully protected in acting, or (v) refraining from acting, in accordance with written instructions signed by the satisfaction Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Neither the Administrative Agent nor any of its Related Parties shall have any responsibility to the Borrower on account of the failure of or delay in performance or breach by any Lender of any condition set forth of its obligations hereunder or to any Lender on account of the failure of or delay in Article IV performance or elsewhere hereinbreach by any other Lender or the Borrower of any of their respective obligations hereunder or in connection herewith. The Administrative Agent shall be deemed to have no knowledge of any Lender being a Restricted Lender unless and until the Administrative Agent shall have received the written notice from such Lender referred to in Section 1.06, and then only as and to the extent specified in such notice, and any determination of whether the Required Lenders or any other than requisite Lenders shall have provided a consent or direction in connection with this Agreement or any other Loan Document shall not be affected by any delivery to confirm receipt the Administrative Agent of items expressly required any such written notice subsequent to such consent or direction being provided by the Required Lenders or other requisite Lenders. The Administrative Agent may execute any and all duties hereunder by or through its branches, Affiliates, agents or employees. Without limiting the foregoing, the Administrative Agent may, by notice to the Borrower, designate any of its branches or Affiliates as the Person to receive any or all notices (including Borrowing Requests and Interest Election Requests) to be delivered to the Administrative AgentAgent pursuant to this Agreement. The Administrative Agent shall be entitled to rely uponrely, and shall not incur any liability for relying uponrelying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) reasonably believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper PersonPerson (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 reasonably believed by it to have been be made by the proper PersonPerson (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being maker thereof), and shall not incur may act upon any liability for relying thereonsuch statement prior to receipt of written confirmation thereof. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior sufficiently in advance to the making of such Loan or the issuance, extension, renewal or increase of such Letter of CreditLoan. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), 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 Subject to the appointment and acceptance of a successor Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by as provided below, 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 by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the CompanyBorrower. Upon any such resignationresignation of the Administrative Agent, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), right to appoint a successorsuccessor Administrative Agent acceptable to the Borrower; provided that in no event shall any successor Administrative Agent be a Defaulting Lender. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (but shall not be obligated to)may, on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank having a combined capital and surplus of at least $500,000,000 (or any Affiliate of such bank) with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successorsuccessor bank, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article IX and Section 9.03 Sections 3.09, 3.11 and 10.05, 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, Agent and its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with With respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment made by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoinghereunder, the Administrative Agent in its individual capacity and not as Administrative Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not (x) be obligated the Administrative Agent, and the Administrative Agent and its Affiliates may accept deposits from, lend money 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 or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to ascertain, monitor or inquire as account therefor to whether the Lenders. In case of the pendency of any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability proceeding with respect to the Borrower under any Federal, state or arising out foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any assignment Loan shall then be due and payable as herein expressed or participation by declaration or otherwise and irrespective of Loans, whether any Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.otherwise:
Appears in 2 contracts
Samples: 364 Day Revolving Credit Agreement (Zimmer Biomet Holdings, Inc.), 364 Day Revolving Credit Agreement (Zimmer Biomet Holdings, Inc.)
The Administrative Agent. Each of the Lenders and Issuing Lenders hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the The provisions of this Article are solely for the benefit of the Administrative Agent, Agent and the Lenders, and neither the Issuing Lenders and the Borrowers Borrower nor any other Loan Party shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” as used 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 Lawlaw. Instead Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The Person 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 Agent, and 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 such bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lendershereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), provided that and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall be necessary, necessary under the circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgmentmisconduct. 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of in any DefaultLoan Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinin 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, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Subject to the appointment and acceptance of a successor Administrative Agent shall not be responsible for as provided in this paragraph, the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the consent of the Company (not to be unreasonably withheld or delayed)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 (but shall not be obligated to)may, on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documentshereunder. The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all Each Lender acknowledges and agrees that the rights, powers, privileges extensions of credit made hereunder are commercial loans and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit and not investments in substitution for the Letters of Credit, if any, outstanding at the time of such succession a business enterprise or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Creditsecurities. Each Lender and each Issuing Lender acknowledges 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 any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this AgreementAgreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender and each Issuing Lender also acknowledges that it willshall, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunderthereunder and in deciding whether or to the extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder. None of the Lenders, if any, identified in this Agreement as a Co-Syndication Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Co-Syndication Agents as it makes with respect to the Administrative Agent in the preceding paragraph. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality exclusive right on behalf of the foregoing, Lenders to enforce the Administrative Agent shall not (x) be obligated payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out the terms of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Eagle Materials Inc), Credit Agreement (Eagle Materials Inc)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks, each, on behalf of itself and its applicable Affiliates and in their respective capacities as such and as Hedge Banks and/or Cash Management Banks, as applicable, hereby irrevocably appoints Citibank, Xxxxx Capital (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers any Loan Party or any Subsidiary subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that the Administrative Agent shall not be under any obligation to provide such information to them. The Administrative Agent and its Affiliates may accept fees and other consideration from any Loan Party in its sole discretion for services in connection with this Agreement or otherwise without any duty having to account therefor for same to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (a) the Administrative Agent (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is continuingintended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powerspower, except discretionary rights and powers that are expressly contemplated hereby or by the other Loan Documents that and which the Administrative Agent is required to exercise in writing as directed in writing by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Requirements of Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacitycapacity and (d) the Administrative Agent (solely in its capacity as such) shall not have any liability for, or have any duty to ascertain, inquire into, monitor or enforce compliance with the provisions hereof relating to compliance by Affiliated Lenders with the terms hereof relating to Affiliated Lenders. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be is necessary, or as the Administrative Agent shall believe believes in good faith shall be necessary, under the relevant circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct misconduct, as determined by the final judgment of a court of competent jurisdiction jurisdiction, in connection with its duties expressly set forth herein. Without limitation of the generality of the foregoing, the Administrative Agent and its Affiliates and their respective directors, officers, agents or employees: (a) may treat the payee of any note as the holder thereof until it receives written notice of the assignment or transfer thereof signed by final such payee and nonappealable judgmentin form satisfactory to the Administrative Agent and (b) make no warranty or representation to any Lender. The Administrative Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyBorrower or any Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenantscovenant, agreements agreement or other terms term or conditions condition set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the Administrative Agent pursuant to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere hereinin 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 uponor (vii) any property, and shall not incur book or record of 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender Loan Party or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice Affiliate thereof. Notwithstanding anything to the contrary from such Lender contained herein or such Issuing Lender prior to the making in any of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article Borrower, the Administrative Agent and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it was acting as being understood that any right to realize upon the Collateral or enforce any Loan Guaranty against any Loan Party pursuant hereto or pursuant to any other Loan Document may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms hereof or thereof , and (ii) after such resignation for as long as in the event of a foreclosure by the Administrative Agent on any of them continues the Collateral pursuant to act a public or private sale or in any capacity hereunder or under the other Loan Documents, including in respect event of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, other Disposition (including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon 363 of the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting LenderBankruptcy Code), (aA) such successor shall succeed to the Administrative Agent, as agent for and become vested with all representative of the rightsSecured Parties, powersshall be entitled, privileges for the purpose of bidding and duties making settlement or payment of the retiring Issuing Xxxxxxpurchase price for all or any portion of the Collateral sold at any such sale, (b) to use and apply all or any portion of the retiring Issuing Lender shall be discharged from all Obligations as a credit on account of their respective duties and obligations hereunder or under the other Loan Documents purchase price for any Collateral payable by the Administrative Agent at such Disposition and (cB) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender may be the purchaser or licensor of all or any portion of their Related Parties and based on such documents and information Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as it has deemed appropriate, made its own credit analysis and decision to enter into such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not Lenders hereby irrevocably authorizes (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is and by entering into a Disqualified Institution or (y) have any liability Hedge Agreement with respect to any Secured Hedging Obligation or arising out by entering into documentation in connection with any Banking Services Obligation, each of any assignment or participation of Loans, or disclosure of confidential information, the other Secured Parties hereby authorizes and shall be deemed to any Disqualified Institution. It is agreed that authorize) the Syndication Administrative Agent, on behalf of all Secured Parties to take any of the Co-Documentation Agents and following actions upon the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.instruction of the Required Lenders:
Appears in 2 contracts
Samples: Credit Agreement (First Watch Restaurant Group, Inc.), Credit Agreement (First Watch Restaurant Group, Inc.)
The Administrative Agent. Each of the Lenders and Issuing Lenders hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative 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 and thereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 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 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, 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 Borrowers or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) 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 by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and 9.02), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the 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, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 7.02 and 9.02) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable 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 Company, another Borrower, a Lender or an Issuing Lender. The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx Issuing Lender and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx Issuing Lender hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing XxxxxxLender, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx Issuing Lender shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Sherwin Williams Co), Credit Agreement (Sherwin Williams Co)
The Administrative Agent. Each of the Lenders and Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf the entity named as the Administrative Agent hereunder in the heading of this Agreement and its successors to serve as administrative agent 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to The Person serving as the consent Administrative Agent hereunder shall have the same rights of and powers in its capacity as a Lender, an Issuing Bank or a Swingline Lender as any other Lender, Issuing Bank or Swingline Lender and may exercise the Company relating to a successor agent same as set forth below, the provisions of this Article are solely for the benefit of though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any of its Subsidiaries or other Affiliates as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders, and the Issuing Lenders and the Borrowers Banks or Swingline Lenders. The Administrative Agent shall not have rights as any duties or obligations except those expressly set forth in the 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 third party beneficiary of any of such provisions. It Default has occurred and is continuing (and 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 law, and that such term is used as a matter of market custom, custom and is intended to create or reflect only an administrative relationship between contracting parties. 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 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, 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 Borrowers or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent (a) 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 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 Sections 7.02 and 9.02the Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counselopinion, may could expose the Administrative Agent to liability or that is be contrary to any Loan Document or applicable Lawlaw, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law rule or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawregulation, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries or other Affiliates that is communicated to or obtained by the 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, or as the Administrative Agent shall believe in good faith shall to be necessary, under the circumstances as provided in Sections 7.02 and 9.02the Loan Documents) or in the absence of its own gross negligence or willful misconduct as misconduct, with such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by the CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein in any Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinin 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, signed or sent or otherwise authenticated by the proper 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 have been be made by the proper Person, and shall not incur may act upon any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender statement prior to the making receipt of such Loan or the issuance, extension, renewal or increase of such Letter of Creditwritten confirmation thereof. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent; provided that, other than in the case of any such sub-agent that is an Affiliate of the Administrative Agent, the Administrative Agent shall provide prompt written notice of such appointment to the Borrower. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Subject to the appointment and acceptance of a successor Administrative Agent shall not be responsible for as provided in this paragraph, the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Banks and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the consent of the Company (not to be unreasonably withheld or delayed)Borrower, to appoint one of the Lenders a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (but shall not be obligated to)may, on behalf of the Lenders and the Issuing Lenders, appoint, in consultation with the consent Borrower, appoint one of the Company (not to be unreasonably withheld or delayed), Lenders as a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor . If the Administrative Agent be is a Defaulting Lender or Disqualified Institution 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 (y) if the Administrative Agent, remove the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted in its capacity as such appointmentand, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, consultation with the consent of the Company (not to be unreasonably withheld or delayed)Borrower, appoint a successor Administrative Agent hereundersuccessor. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the its benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent Agent, any Issuing Bank or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent Agent, any Issuing Bank or any other Lender Lender, or any other their 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, or delivering its signature page to an Assignment and Acceptance 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 Closing Date. Except with respect to the exercise of setoff rights of any Lender in accordance with Section 9.09 or with respect to a Lender’s right to file a proof of claim in an insolvency proceeding, 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 furtherance of the foregoing and not in limitation thereof, no Secured Swap Agreement or Secured Cash Management 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 Secured Swap Agreement or Secured Cash Management 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. The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any liability forrepresentation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Administrative Agent’s Lien thereon, or have any duty certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or liable to ascertain, inquire into, the Secured Parties for any failure to monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality maintain any portion of the foregoingCollateral. In case of the pendency of any proceeding with respect to any Loan Party under any Federal, State or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to irrespective of whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out the principal of any assignment Loan or participation any LC Disbursement shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of Loans, whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.otherwise:
Appears in 2 contracts
Samples: Assignment and Acceptance (Hess Midstream Partners LP), Assignment and Acceptance (Hess Midstream Partners LP)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as 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 and or thereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights Each of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, Lenders and the Issuing Lenders Banks hereby irrevocably appoints the Collateral Agent as the collateral agent hereunder and under the Borrowers shall not 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 and authorizes the Collateral Agent to have all the rights and benefits hereunder and thereunder (or any other similar term) with reference 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 Administrative Collateral Agent is not intended to connote any fiduciary by the terms hereof or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead thereof, together with such term is used actions and powers as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting partiesare reasonably incidental thereto. 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requiresindicates, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of banking, trust or other business with any of the Borrowers Obligors (or any Subsidiary or other Affiliate thereof 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 of the Obligors or other Affiliate thereof for services in connection with this Agreement or otherwise without any duty having to account therefor for the same to the other Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and 9.02), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the 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, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 7.02 and 9.02) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable 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 Company, another Borrower, a Lender or an Issuing Lender. The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.and
Appears in 2 contracts
Samples: Senior Secured Revolving Credit Agreement (Goldman Sachs Middle Market Lending Corp. II), Senior Secured Credit Agreement (Blue Owl Technology Finance Corp. II)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as 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 and or thereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights Each of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, Lenders and the Issuing Lenders Banks hereby irrevocably appoints the Collateral Agent as the collateral agent hereunder and under the Borrowers shall not 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 and authorizes the Collateral Agent to have all the rights and benefits hereunder and thereunder (or any other similar term) with reference 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 Administrative Collateral Agent is not intended to connote any fiduciary by the terms hereof or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead thereof, together with such term is used actions and powers as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting partiesare reasonably incidental thereto. 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requiresindicates, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of banking, trust or other business with any of the Borrowers Obligors (or any Subsidiary or other Affiliate thereof 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 of the Obligors or other Affiliate thereof for services in connection with this Agreement or otherwise without any duty having to account therefor for the same to the other Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and 9.02), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief LawLenders, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the 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, expressly provided for herein or as in the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 7.02 and 9.02other Loan Documents) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgmentmisconduct. 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Defaulttherein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinherein 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 electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one (1) 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 by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Banks and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (Borrower not to be unreasonably withheld or delayed(or, if an Event of Default has occurred and is continuing in consultation with the Borrower), to appoint a successor, which is not a natural person, a Defaulting Lender or a Disqualified Lender. 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’s resignation shall nonetheless become effective (except that in the case of any collateral security held by the Administrative Agent may (but shall not be obligated to), on behalf of the Lenders and or the Issuing Lenders, appoint, with the consent Banks under any of the Company (not Loan Documents, the retiring or removed Administrative Agent shall continue to be unreasonably withheld or delayed), hold such collateral security until such time as a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (xis appointed) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under (2) the other Loan Documents Required Lenders shall perform the duties of the Administrative Agent (and (b) except for any indemnity all payments or other amounts then owed to the retiring Administrative Agent, all payments, and communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly directly) until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent hereunderagent as provided for above in this paragraph. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents(if not already discharged therefrom as provided above in this paragraph). The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the its benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank SMBC as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Bank and a Swingline Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company acceptance of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender)successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing XxxxxxBank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents Documents, and (c) the successor Xxxxxxx Xxxxxx Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank the retiring Issuing Bank to effectively assume the obligations of Citibank the retiring Issuing Bank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges agrees that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender Agreement and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties 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 and other Loan Documents to which it is a party. Except as otherwise provided in Section 9.02(b) with respect to this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The the Administrative Agent shall not be responsible or have any liability formay, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality prior consent of the foregoingRequired Lenders (but not otherwise), consent to any modification, supplement or waiver under any of the Loan Documents, provided that, without the prior consent of each Lender and each Issuing Bank, the Administrative Agent shall not (xexcept as provided herein or in the Security Documents) be obligated 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 ascertainadditional obligations being secured by all or substantially all of such collateral security, monitor or inquire as alter the relative priorities of the obligations entitled to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability the benefits of the Liens created under the Security Documents with respect to all or arising out substantially all of any assignment or participation of Loansthe Collateral, or disclosure of confidential informationexcept 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 Disqualified Institution. It party) any Lien covering property that is agreed that the Syndication Agentsubject of either a disposition of property (including, without limitation, any property subject to a participation or repurchase transaction) not prohibited hereunder or a disposition to which the Co-Documentation Agents Required Lenders have consented, (2) release from any Guarantee and Security Agreement any “Subsidiary Guarantor” (and any property of such Subsidiary Guarantor) in accordance with Section 9.02(c) and (3) spread Liens to any Designated Indebtedness or Hedging Agreement Obligations (as such terms are defined in the Joint Lead Arrangers shall, Guarantee and Security Agreement) in their capacities as such, have no duties or responsibilities under this accordance with the Guarantee and Security Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Blue Owl Credit Income Corp.), Credit Agreement (Blue Owl Credit Income Corp.)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, the entity named as Administrative Agent, Agent in the heading of this Agreement and its successors to act on its behalf serve as the Administrative Agent hereunder administrative agent and collateral agent under the other Loan Documents Documents, 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect In addition, to the consent rights extent required under the laws of any jurisdiction other than the United States of America, each of the Company relating Lenders and the Issuing Banks hereby grants to the Administrative Agent any required powers of attorney to execute any Collateral Document governed by the laws of such jurisdiction on such Lender’s or Issuing Bank’s behalf. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a successor agent Lender as set forth below, any other Lender or Issuing Bank and may exercise the provisions of this Article are solely for the benefit of same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the Lenders, financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Lenders and the Borrowers Banks. The Administrative Agent shall not have rights as any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a third party beneficiary of any of such provisions. It Default has occurred and is continuing (and 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 law, and that such term is used as a matter of market custom, custom and is intended to create or reflect only an administrative relationship between contracting parties. 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 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, 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 Borrowers or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent (a) 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 powerspower, 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 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 Sections 7.02 and 9.02the Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counselopinion, may could expose the Administrative Agent to liability or that is 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 Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawlaw, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries Subsidiary or other Affiliate thereof that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall to be necessary, under the circumstances as provided in Sections 7.02 and 9.02the Loan Documents) or in the absence of its own bad faith, 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 nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by the CompanyBorrower Representative or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein in any Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement, any other 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 IV or elsewhere hereinin 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 uponrely, and shall not incur any liability for relying uponrelying, 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, sent or otherwise authenticated by the proper PersonPerson (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 have been be made by the proper PersonPerson (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 thereonsuch statement prior to receipt of written confirmation thereof. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any an Issuing LenderBank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender Bank prior to the making of such Loan or the issuance, extension, renewal or increase issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. experts The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its their duties and exercise its their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the bad faith, negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable nonappealable judgment that the Administrative Agent acted with bad faith, gross negligence or willful misconduct in the selection of such sub-agents. The Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Banks and the CompanyBorrower Representative. Upon any such resignation, the Required Lenders shall have the right, in consultation with the consent of the Company (not to be unreasonably withheld or delayed)Borrowers, to appoint a successorsuccessor that is an Eligible Successor Agent. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (but shall not be obligated to)may, in consultation with the Borrower Representative, on behalf of the Lenders and the Issuing LendersBanks, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank with is an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Eligible Successor Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time time, if any, as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent hereunderAgent. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documentshereunder. The fees payable by the Company Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrowers and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article Article, Section 2.17(d) and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or Agent, any other Arranger, any Lender or any Issuing Bank, or any of their 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 Lender Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or Agent, any other Arranger, any Lender or any other their 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. The Loan Parties acknowledge and agree that the Administrative Agent may prepare and distribute to the Lenders Reports containing information obtained by the Administrative Agent through the conduct of appraisals and field examinations pursuant to Sections 5.12 and 5.13 and the exercise of its inspection rights under Section 5.09. Each Lender hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be responsible liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Loan Parties and will rely significantly upon the Loan Parties’ books and records, as well as on representations of the Loan Parties’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, not share the Report with any Loan Party or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and, except solely to the extent of the Borrowers’ rights to consent pursuant to and subject to the conditions set forth in this Article, none of the Borrowers or any other Loan Party shall have any liability forrights as a third party beneficiary of any such provisions. Each Lender Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Loan Guarantee provided under the Loan Documents, to have any duty agreed to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Article. Notwithstanding anything herein to the contrary, neither the Arrangers nor any Person named on the cover page of this Agreement relating to Disqualified Institutions. Without limiting as a Syndication Agent or a Documentation Agent shall have any duties or obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as a Lender or an Issuing Bank), but all such Persons shall have the generality benefit of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreementindemnities provided for hereunder.
Appears in 2 contracts
Samples: Credit Agreement (Ascena Retail Group, Inc.), Intercreditor Agreement (Ascena Retail Group, Inc.)
The Administrative Agent. Each of the Lenders and Issuing Lenders hereby irrevocably appoints Citibank, RBC (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers any Loan Party or any Subsidiary subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and without acknowledge that the Administrative Agent shall not be under any duty obligation to account therefor provide such information to the Lendersthem. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is continuingintended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powerspower, except discretionary rights and powers that are expressly contemplated hereby or by the other Loan Documents that and which the Administrative Agent is required to exercise in writing as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance Requirements of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Top Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party 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 is necessary, or as the Administrative Agent shall believe believes in good faith shall be necessary, under the relevant circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct misconduct, as determined by the final judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyTop Borrower or any Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenantscovenant, agreements agreement or other terms term or conditions condition set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the Administrative Agent pursuant to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere hereinin 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 uponor (vii) any property, and shall not incur book or record of 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender Loan Party or any Issuing LenderAffiliate thereof. Each Lender agrees that, except with the written consent of the Administrative Agent may presume that such condition is satisfactory to such Lender Agent, it will not take any enforcement action hereunder or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by Document, accelerate the Obligations under any Loan Document, or through exercise any one right that it might otherwise have under applicable Requirements of Law or more sub-agents appointed by otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section 363 of the Administrative AgentBankruptcy Code or any other similar Disposition of Collateral. The Administrative Agent and any such sub-agent Notwithstanding the foregoing, a Lender may perform any and all of its duties and exercise take action to preserve or enforce its rights and powers against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations held by or through their respective Related Partiessuch Lender, including the filing of a proof of claim in a case under the Bankruptcy Code. The exculpatory provisions of this Article shall apply to any such sub-agent and Notwithstanding anything to the Related Parties contrary contained herein or in any of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article Borrowers, the Administrative Agent and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it was acting as being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms hereof, and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges rights and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or remedies under the other Loan Documents may be exercised solely by the Administrative Agent, and (cii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the successor Xxxxxxx Xxxxxx Administrative Agent, as agent for and representative of the Secured Parties, shall issue letters of credit in substitution be entitled, for the Letters purpose of Creditbidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, if any, outstanding to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender Disposition and each Issuing Lender acknowledges that it has, independently and without reliance upon (B) the Administrative Agent or any other Lender may be the purchaser or licensor of all or any portion of their Related Parties and based on such documents and information Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as it has deemed appropriate, made its own credit analysis and decision to enter into such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not Lenders hereby irrevocably authorizes (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is and by entering into a Disqualified Institution or (y) have any liability Hedge Agreement with respect to or arising out any Secured Hedging Obligation and/or by entering into documentation in connection with any Banking Services Obligation, each of any assignment or participation of Loans, or disclosure of confidential information, the other Secured Parties hereby authorizes and shall be deemed to any Disqualified Institution. It is agreed that authorize) the Syndication Administrative Agent, on behalf of all Secured Parties to take any of the Co-Documentation Agents and following actions upon the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.instruction of the Required Lenders:
Appears in 2 contracts
Samples: Intercreditor Agreement (Cotiviti Holdings, Inc.), Intercreditor Agreement (Cotiviti Holdings, Inc.)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks, on behalf of itself and its applicable Affiliates and in their respective capacities as such and as Secured Parties in respect of any Secured Hedging Obligations or Banking Services Obligations, as applicable, hereby irrevocably appoints Citibank, JPM (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf behalf, including execution of the other Loan Documents or any other documents with respect to the rights of the Secured Parties and the Collateral as contemplated by this Agreement and the Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms hereof and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights Each of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, Secured Parties hereby irrevocably appoints and the Issuing Lenders and the Borrowers shall not 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 authorizes the Administrative Agent is not intended (as collateral agent) to connote act as the agent of (and to hold any fiduciary security interest created by the Loan Documents for and on behalf of or other implied (or expresson trust for) obligations arising under agency doctrine such Secured Party for purposes of acquiring, holding and enforcing any applicable Law. Instead and all Liens on Collateral granted by the Loan Parties to secure any of the Obligations, together with such term is used powers and discretion as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting partiesare reasonably incidental thereto. The Lenders agree that any such actions by the Administrative Agent shall bind such Secured Party. 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers any Loan Party or any Subsidiary subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and without acknowledge that the Administrative Agent shall not be under any duty obligation to account therefor provide such information to the Lendersthem. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is continuingintended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powerspower, except discretionary rights and powers that are expressly contemplated hereby or by the other Loan Documents that and which the Administrative Agent is required to exercise in writing as directed in writing by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance Requirements of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Company Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the relevant circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct misconduct, as determined by the final judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyBorrower or any Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenantscovenant, agreements agreement or other terms term or conditions condition set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere hereinin 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 uponor (vii) any property, and shall not incur book or record of 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender Loan Party or any Issuing LenderAffiliate thereof, provided, further that, the Administrative Agent may presume that such condition foregoing paragraph is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel solely for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties benefit of the Administrative Agent and not any such sub-agentLender. 187 Each Lender agrees that, and shall apply to their respective activities in connection except with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the written consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all paymentsit will not take any enforcement action hereunder or under any other Loan Document, communications and determinations provided accelerate the Obligations under any Loan Document, or exercise any right that it might otherwise have under applicable law or otherwise to be made bycredit bid at any foreclosure sale, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appointUCC sale, with the consent any sale under Section 363 of the Company (not to be unreasonably withheld Bankruptcy Code or delayed)other similar Dispositions of Collateral. Notwithstanding the foregoing, however, except as otherwise expressly limited herein, a successor Administrative Agent hereunder. Upon the acceptance of Lender may take action to preserve or enforce its appointment as Administrative Agent hereunder by rights against a successorLoan Party where a deadline or limitation period is applicable that would, absent such successor shall succeed to and become vested with all action, bar enforcement of the rightsObligations held by such Lender, powers, privileges and duties including the filing of a proof of claim in a case under the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed Bankruptcy Code. Notwithstanding anything to the retiring Administrative Agent as contrary contained herein or in any of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article Borrower, the Administrative Agent and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it was acting as being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms hereof and all powers, rights and remedies under the other Loan Documents may be exercised solely by the Administrative Agent and (ii) after such resignation for as long as in the event of a foreclosure by the Administrative Agent on any of them continues the Collateral pursuant to act a public or private sale or in any capacity hereunder or under the other Loan Documents, including in respect event of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, other Disposition (including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon 363 of the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting LenderBankruptcy Code), (aA) such successor shall succeed to the Administrative Agent, as agent for and become vested with all representative of the rightsSecured Parties, powersshall be entitled, privileges for the purpose of bidding and duties making settlement or payment of the retiring Issuing Xxxxxxpurchase price for all or any portion of the Collateral sold at any such sale, (b) to use and apply all or any portion of the retiring Issuing Lender shall be discharged from all Obligations as a credit on account of their respective duties and obligations hereunder or under the other Loan Documents purchase price for any Collateral payable by the Administrative Agent at such Disposition and (cB) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender may be the purchaser or licensor of all or any portion of their Related Parties and based on such documents and information Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as it has deemed appropriate, made its own credit analysis and decision to enter into such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not Lenders hereby irrevocably authorizes (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is and by entering into a Disqualified Institution or (y) have any liability Hedge Agreement with respect to or arising out any Secured Hedging Obligation and/or by entering into documentation in connection with any Banking Services Obligation, each of any assignment or participation the other Secured Parties hereby authorizes and shall be deemed to authorize) the Administrative Agent, on behalf of Loans, or disclosure of confidential informationall Secured Parties, to take any Disqualified Institution. It is agreed that of the Syndication Agent, following actions upon the Co-Documentation Agents and instruction of the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.Required Lenders:
Appears in 2 contracts
Samples: First Lien Credit Agreement (Isos Acquisition Corp.), Fourth Amendment (Isos Acquisition Corp.)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, GS (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers any Loan Party or any Subsidiary subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and without acknowledge that the Administrative Agent shall not be under any duty obligation to account therefor provide such information to the Lendersthem. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is continuingintended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powerspower, except discretionary rights and powers that are expressly contemplated hereby or by the other Loan Documents that and which the Administrative Agent is required to exercise in writing as directed in writing by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance Requirements of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Top Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be is necessary, or as the Administrative Agent shall believe believes in good faith shall be necessary, under the relevant circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct misconduct, as determined by the final judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyTop Borrower or any Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenantscovenant, agreements agreement or other terms term or conditions condition set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the Administrative Agent pursuant to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere hereinin any Loan Document, other than to confirm receipt of items expressly required to be 148 delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely uponor (vii) any property, and shall not incur book or record of 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender Loan Party or any Issuing LenderAffiliate thereof. Each Lender agrees that, except with the written consent of the Administrative Agent may presume that such condition is satisfactory to such Lender Agent, it will not take any enforcement action hereunder or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by Document, accelerate the Obligations under any Loan Document, or through exercise any one right that it might otherwise have under applicable Requirements of Law or more sub-agents appointed by otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section 363 of the Administrative AgentBankruptcy Code or any other similar Disposition of Collateral. The Administrative Agent and any such sub-agent Notwithstanding the foregoing, a Lender may perform any and all of its duties and exercise take action to preserve or enforce its rights and powers against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations held by or through their respective Related Partiessuch Lender, including the filing of a proof of claim in a case under the Bankruptcy Code. The exculpatory provisions of this Article shall apply to any such sub-agent and Notwithstanding anything to the Related Parties contrary contained herein or in any of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article Borrowers, the Administrative Agent and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it was acting as being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms hereof, and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges rights and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or remedies under the other Loan Documents may be exercised solely by the Administrative Agent, and (cii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the successor Xxxxxxx Xxxxxx Administrative Agent, as agent for and representative of the Secured Parties, shall issue letters of credit in substitution be entitled, for the Letters purpose of Creditbidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, if any, outstanding to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender Disposition and each Issuing Lender acknowledges that it has, independently and without reliance upon (B) the Administrative Agent or any other Lender may be the purchaser or licensor of all or any portion of their Related Parties and based on such documents and information Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as it has deemed appropriate, made its own credit analysis and decision to enter into such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not Lenders hereby irrevocably authorizes (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is and by entering into a Disqualified Institution or (y) have any liability Hedge Agreement with respect to or arising out any Secured Hedging Obligation and/or by entering into documentation in connection with any Banking Services Obligation, each of any assignment or participation of Loans, or disclosure of confidential information, the other Secured Parties hereby authorizes and shall be deemed to any Disqualified Institution. It is agreed that authorize) the Syndication Administrative Agent, on behalf of all Secured Parties to take any of the Co-Documentation Agents and following actions upon the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.instruction of the Required Lenders:
Appears in 2 contracts
Samples: Intercreditor Agreement (Cotiviti Holdings, Inc.), Intercreditor Agreement (Cotiviti Holdings, Inc.)
The Administrative Agent. Each of the Lenders and Issuing Lenders hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf the entity named as the Administrative Agent hereunder in the heading of this Agreement and its successors to serve in such capacity under the other Loan Documents Documents, and authorizes the Administrative Agent to execute, deliver and administer the Loan Documents and to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except 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 the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent in its individual capacity), and such Person and its Affiliates may accept deposits from, lend money 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 respect the Borrower or any Subsidiary or Affiliate thereof or any other Person that may do business with or own Equity Interests in the Borrower as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Lenders. The Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers Agent shall not have rights any duties or obligations except those expressly set forth in the Loan Documents. In performing its functions and duties under this Agreement, the Administrative Agent shall act solely as agent of the Lenders and shall not assume, or be deemed to have assumed, any relationship of agency or trust with or for the Borrower. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a third party beneficiary of any of such provisions. It Default has occurred and is continuing (and 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 law, and that such term is used as a matter of market custom, custom and is intended to create or reflect only an administrative relationship between contracting parties. 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 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, 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 Borrowers or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent (a) 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 powerspower, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent exercise (including in connection with any transaction contemplated by Section 6.03) or that the Administrative Agent is required to exercise as directed in writing 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 Sections 7.02 and 9.02the Loan Documents), provided that the Administrative Agent shall CHAR1\1536846v3 CHAR1\1539728v3 * For voting purposes only. Percentages are approximate due to rounding. ** After giving effect to an assignment on the Effective Date by Northwest Farm Credit Services, PCA of $70,000,000.00 of its Commitment to CoBank, FCB (which will become a Lender via an Assignment and Assumption dated and effective as of the Effective Date), but before giving effect to the participations on the Effective Date. *** After giving effect to the Effective Date assignment and the Effective Date participations. not be required to take any action that, in its opinion or the opinion of its counselopinion, may expose the Administrative Agent to liability or that is could be contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that law or may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawexpose it to liability, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and the Administrative Agent shall not be liable for the failure to disclose, any information relating to the Company Borrower, or any Subsidiary or Affiliate of its Subsidiaries the Borrower, that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall to be necessary, under the circumstances as provided in Sections 7.02 and 9.02) the Loan Documents), which consent or request, as applicable, shall be binding upon all Lenders, or in the absence of its own gross negligence negligence, bad faith or willful misconduct as (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default” and stating the nature of the Default) is given to the Administrative Agent by the CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein in any Loan Document or the occurrence of any Default, (iv) the due execution, legality, sufficiency, validity, enforceability, effectiveness effectiveness, genuineness or genuineness value of this Agreement, any other Loan Document or any other agreement, instrument or document, document or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinin any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. The Administrative Agent shall be entitled to rely uponrely, and shall not incur any liability for relying uponrelying, 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, sent or otherwise authenticated by the proper PersonPerson (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 have been be made by the proper PersonPerson (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 thereonsuch statement prior to receipt of written confirmation thereof. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, Loan that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of CreditLoan. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), 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 and 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 of its their duties and exercise its their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities facility provided for herein as well as activities as the Administrative Agent. The Administrative No Agent shall not be CHAR1\1536846v3 CHAR1\1539728v3 * For voting purposes only. Percentages are approximate due to rounding. ** After giving effect to an assignment on the Effective Date by Northwest Farm Credit Services, PCA of $70,000,000.00 of its Commitment to CoBank, FCB (which will become a Lender via an Assignment and Assumption dated and effective as of the Effective Date), but before giving effect to the participations on the Effective Date. *** After giving effect to the Effective Date assignment and the Effective Date participations. responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable nonappealable judgment that the Administrative Agent acted with gross negligence negligence, bad faith or willful misconduct in misconduct. Subject to this paragraph and Section 9.18, the selection of such sub-agents. 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 Borrower and the Lenders, the Issuing Lenders and the Company. Upon receipt of any such resignationnotice of resignation by the Administrative Agent, the Required Lenders shall have the right, with subject to Section 9.18 and the consent of the Company Borrower (other than during the existence of an Event of Default under clause (a), (b), (h) or (i) of Article VII), which consent of the Borrower shall not to be unreasonably withheld withheld, delayed or delayed)conditioned, to appoint a successor, which shall be a Farm Credit Lender or a bank (or an Affiliate of a Farm Credit Lender or a bank). 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 resignationintent to resign, then the retiring Administrative Agent may (but shall not be obligated to)may, on behalf of the Lenders and the Issuing Lenders, appointappoint a successor, with subject to Section 9.18 and the consent of the Company Borrower (not to be unreasonably withheld or delayedother than during the existence of an Event of Default under clause (a), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b), (h) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent(i) of Article VII), all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the which consent of the Company (Borrower shall not to be unreasonably withheld withheld, delayed or delayed), a successor Administrative Agent hereunderconditioned. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between by the Company Borrower and such successor. After Notwithstanding the foregoing, in the event no successor Administrative Agent’s 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 other Agents, the Lenders 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, without any other further act or deed on the part of such retiring Administrative Agent or any other Person, 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. Following the effectiveness of the Administrative Agent’s resignation from its capacity as such, the provisions of this Article and Section 9.03 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 (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent Agent, any Arranger or any other Lender Lender, or any of their 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 Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent Agent, any Arranger or any other Lender Lender, or any other their 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. The Administrative Agent shall not be responsible or have any liability forCHAR1\1536846v3 CHAR1\1539728v3 * For voting purposes only. Percentages are approximate due to rounding. ** After giving effect to an assignment on the Effective Date by Northwest Farm Credit Services, PCA of $70,000,000.00 of its Commitment to CoBank, FCB (which will become a Lender via an Assignment and Assumption dated and effective as of the Effective Date), but before giving effect to the participations on the Effective Date. *** After giving effect to the Effective Date assignment and the Effective Date participations. 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 any duty acknowledged receipt of, and consented to ascertainand approved, inquire intoeach Loan Document and each other document required to be delivered to, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoingbe approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date. Notwithstanding anything herein to the contrary, neither any Arranger nor any Person named on the cover page of this Agreement as a Syndication Agent or a Documentation Agent shall have any duties, responsibilities or obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as the Administrative Agent or a Lender), but all such Persons shall have the benefit of the indemnities provided for hereunder. The provisions of this Article (other than provisions of this Article providing the Borrower with a consent right, all of which shall also be for the benefit of the Borrower) are solely for the benefit of the Administrative Agent and the Lenders, and the Borrower shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out rights as a third party beneficiary of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreementsuch provisions.
Appears in 1 contract
The Administrative Agent. Each of the Lenders and Issuing Lenders hereby irrevocably appoints Citibank, the entity named as Administrative AgentAgent in the heading of this Agreement and its successors to serve as administrative agent hereunder, to act on its behalf as the Administrative 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 and thereofhereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such such Person and its Affiliates may accept deposits from, lend money 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 Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documentsherein, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (a) the Administrative Agent (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuingcontinuing (and it is understood and agreed that the use of the term “agent” herein (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, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties), (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary powerspower, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents this Agreement that the Administrative Agent is required to exercise as directed in writing 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 Sections 7.02 and 9.02this Agreement), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counselopinion, may could expose the Administrative Agent to liability or that is be contrary to any Loan Document this Agreement or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawlaw, and (c) shall not, except as expressly set forth herein and in this Agreement, the other Loan Documents, Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower, any Subsidiary or any other Affiliate of its Subsidiaries any of the foregoing that is communicated to or obtained by the 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, or as the Administrative Agent shall believe in good faith shall to be necessary, under the circumstances as provided in Sections 7.02 and 9.02this Agreement) 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 nonappealable non-appealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by the CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan DocumentAgreement, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein in this Agreement or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinin this Agreement, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. The Administrative Agent shall be entitled to rely uponrely, and shall not incur any liability for relying uponrelying, 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, sent or otherwise authenticated by the proper PersonPerson (whether or not such Person in fact meets the requirements set forth in this Agreement 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 have been be made by the proper PersonPerson (whether or not such Person in fact meets the requirements set forth in this Agreement for being the signatory, sender or authenticator thereof), and shall not incur may act upon any liability for relying thereonsuch statement prior to receipt of written confirmation thereof. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, Loan that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of CreditLoan. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), 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 and 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 of its their duties and exercise its their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Subject to the terms of this paragraph, the Administrative Agent may resign at any time by notifying the Lendersfrom its capacity as such. In connection with such resignation, the Issuing Administrative Agent shall give notice of its intent to resign to the Lenders and the CompanyBorrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, with the consent of the Company Borrower (not to be unreasonably withheld or delayedand 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 resignationintent to resign, then the retiring Administrative Agent may (but shall not be obligated to)may, on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent Agent, which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documentshereunder. The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between by the Company 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 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 (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 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. Following the effectiveness of the Administrative Agent’s resignation hereunder and under the other Loan Documentsfrom its capacity as such, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent Agent, the Arranger or any other Lender Lender, or any of their 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 Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent Agent, the Arranger or any other Lender Lender, or any other their 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 Agreement or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability forEach 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 pursuant to which it shall become a Lender hereunder, shall be deemed to have any duty acknowledged receipt of, and consented to ascertainand approved, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating and each other document required to Disqualified Institutions. Without limiting the generality of the foregoingbe delivered to, or be approved by or satisfactory to, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether the Lenders on the Effective Date. In case of the pendency of any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability proceeding with respect to the Borrower under any Federal, state or arising out foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any assignment Loan shall then be due and payable as herein expressed or participation by declaration or otherwise and irrespective of Loans, whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.otherwise:
Appears in 1 contract
Samples: Bridge Credit Agreement (Raymond James Financial Inc)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as 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 and or thereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights Each of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, Lenders and the Issuing Lenders Banks hereby irrevocably appoints the Collateral Agent as the collateral agent hereunder and under the Borrowers shall not 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 and authorizes the Collateral Agent to have all the rights and benefits hereunder and thereunder (or any other similar term) with reference 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 Administrative Collateral Agent is not intended to connote any fiduciary by the terms hereof or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead thereof, together with such term is used actions and powers as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting partiesare reasonably incidental thereto. 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requiresindicates, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits 131 748405650 from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of banking, trust or other business with any of the Borrowers Obligors (or any Subsidiary or other Affiliate thereof 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 of the Obligors or other Affiliate thereof for services in connection with this Agreement or otherwise without any duty having to account therefor for the same to the other Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and 9.02), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief LawLenders, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the 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, expressly provided for herein or as in the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 7.02 and 9.02other Loan Documents) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgmentmisconduct. 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Defaulttherein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinherein 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 electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one (1) 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 by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent 132 748405650 jurisdiction determines in a final and non non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Banks and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (Borrower not to be unreasonably withheld or delayed(or, if an Event of Default has occurred and is continuing in consultation with the Borrower), to appoint a successor, which is not a natural person, a Defaulting Lender or a Disqualified Lender. 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’s resignation shall nonetheless become effective (except that in the case of any collateral security held by the Administrative Agent may (but shall not be obligated to), on behalf of the Lenders and or the Issuing Lenders, appoint, with the consent Banks under any of the Company (not Loan Documents, the retiring or removed Administrative Agent shall continue to be unreasonably withheld or delayed), hold such collateral security until such time as a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (xis appointed) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under (2) the other Loan Documents Required Lenders shall perform the duties of the Administrative Agent (and (b) except for any indemnity all payments or other amounts then owed to the retiring Administrative Agent, all payments, and communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly directly) until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent hereunderagent as provided for above in this paragraph. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents(if not already discharged therefrom as provided above in this paragraph). The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the its benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank SMBC as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Bank and a Swingline Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company acceptance of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender)successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing XxxxxxBank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents Documents, and (c) the successor Xxxxxxx Xxxxxx Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank the retiring Issuing Bank to effectively assume the obligations of Citibank the retiring Issuing Bank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges agrees that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender Agreement and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties 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 and other Loan Documents to which it is a party. Except as otherwise provided in Section 9.02(b) with respect to this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The the Administrative Agent shall not be responsible or have any liability formay, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality prior consent of the foregoingRequired Lenders (but not otherwise), consent to any modification, supplement or waiver under any of the Loan Documents, provided that, without the prior consent of each Lender and each Issuing Bank, the Administrative Agent shall not (xexcept as provided herein or in the Security Documents) be obligated 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 ascertainadditional obligations being secured by all 133 748405650 or substantially all of such collateral security, monitor or inquire as alter the relative priorities of the obligations entitled to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability the benefits of the Liens created under the Security Documents with respect to all or arising out substantially all of any assignment or participation of Loansthe Collateral, or disclosure of confidential informationexcept 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 Disqualified Institution. It party) any Lien covering property that is agreed that the Syndication Agentsubject of either a disposition of property not prohibited 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) in accordance with Section 9.02(c) and (3) spread Liens to any Designated Indebtedness or Hedging Agreement Obligations (as such terms are defined in the Co-Documentation Agents Guarantee and Security Agreement) in accordance with the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Guarantee and Security Agreement.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Owl Rock Core Income Corp.)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as 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 and or thereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights Each of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, Lenders and the Issuing Lenders Banks hereby irrevocably appoints the Collateral Agent as the collateral agent hereunder and under the Borrowers shall not 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 and authorizes the Collateral Agent to have all the rights and benefits hereunder and thereunder (or any other similar term) with reference 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 Administrative Collateral Agent is not intended to connote any fiduciary by the terms hereof or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead thereof, together with such term is used actions and powers as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting partiesare reasonably incidental thereto. 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requiresindicates, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of banking, trust or other business with any of the Borrowers Obligors (or any Subsidiary or other Affiliate thereof 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 of 152 the Obligors or other Affiliate thereof for services in connection with this Agreement or otherwise without any duty having to account therefor for the same to the other Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and 9.02), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief LawLenders, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to any Lender or Issuing Bank 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, expressly provided for herein or as in the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 7.02 and 9.02other Loan Documents) or in the absence of its own fraud, gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgmentmisconduct. 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Defaulttherein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinherein 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 electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one (1) 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 by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non non-appealable judgment that the Administrative Agent acted with fraud, gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying providing not less than thirty (30) days advance written notice to the Lenders, the Issuing Lenders Banks and the CompanyBorrower. Upon any such notice of resignation, the Required Lenders shall have the right, with the consent of the Company (Borrower not to be unreasonably withheld or delayed(or, if an Event of Default has occurred and is continuing in consultation with the Borrower), to appoint a successor, which is not a natural person, a Defaulting Lender or a Disqualified Lender. 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’s resignation shall nonetheless become effective at the end of such thirty (30) days period (except that in the case of any collateral security held by the Administrative Agent may (but shall not be obligated to), on behalf of the Lenders and or the Issuing Lenders, appoint, with the consent Banks under any of the Company (not Loan Documents, the retiring or removed Administrative Agent shall continue to be unreasonably withheld or delayed), hold such collateral security until such time as a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (xis appointed) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under (2) the other Loan Documents Required Lenders shall perform the duties of the Administrative Agent (and (b) except for any indemnity all payments or other amounts then owed to the retiring Administrative Agent, all payments, and communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly directly) until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent hereunderagent as provided for above in this paragraph. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents(if not already discharged therefrom as provided above in this paragraph). The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the its benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank Truist Bank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Bank and a Swingline Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company acceptance of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender)successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing XxxxxxBank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents Documents, and (c) the successor Xxxxxxx Xxxxxx Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank the retiring Issuing Bank to effectively assume the obligations of Citibank the retiring Issuing Bank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges agrees that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender Agreement and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties 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 Agreement and other Loan Document Documents to which it is a party. Except as otherwise provided in Section 9.02(b) or any related agreement or any document furnished hereunder or thereunder. The the Security Documents, the Administrative Agent shall not be responsible or have any liability formay, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality prior consent of the foregoingRequired Lenders (but not otherwise), consent to any modification, supplement or waiver under any of the Loan Documents, provided that, without the prior consent of each Lender and each Issuing Bank, the Administrative Agent shall not (xexcept as provided herein or in the Security Documents) be obligated 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 ascertainadditional obligations being secured by all or substantially all of such collateral security, monitor or inquire as alter the relative priorities of the obligations entitled to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability the benefits of the Liens created under the Security Documents with respect to all or arising out substantially all of any assignment or participation of Loansthe Collateral, or disclosure of confidential informationexcept 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 Disqualified Institution. It party) any Lien covering property that is agreed that the Syndication Agentsubject of either a disposition of property (including, without limitation, any property subject to a participation or repurchase transaction) not prohibited hereunder or a disposition to which the Co-Documentation Agents Required Lenders have consented, (2) release from any Guarantee and Security Agreement any “Subsidiary Guarantor” (and any property of such Subsidiary Guarantor) in accordance with Section 9.02(c) hereof and Section 10.03 of the Joint Lead Arrangers shall, Guarantee and Security Agreement and (3) spread Liens to any Designated Indebtedness or Hedging Agreement Obligations (as such terms are defined in their capacities as such, have no duties or responsibilities under this the Guarantee and Security Agreement) in accordance with the Guarantee and Security Agreement.
Appears in 1 contract
Samples: Secured Revolving Credit Agreement (Goldman Sachs Private Credit Corp.)
The Administrative Agent. Each of the Lenders and Issuing Lenders hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofLEGAL02/41506940v2 Table of Contents (continued) Page of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” as used 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 Lawlaw. Instead Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The Person 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 Agent, and 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 such bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of business with the Borrowers Company or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lendershereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), provided that and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall be necessary, necessary under the circumstances as provided in Sections 7.02 and Section 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 final and nonappealable judgmentjurisdiction. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyCompany or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or documentdocument (including, for the avoidance of doubt, in connection with the Administrative Agent’s reliance on any Electronic Signature transmitted by telecopy, emailed pdf, or any other electronic means that reproduces an image of an actual executed signature page) or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinin 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, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersCompany), independent accountants and other LEGAL02/41506940v2 Table of Contents (continued) Page experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Subject to the appointment and acceptance of a successor Administrative Agent shall not be responsible for as provided in this paragraph, the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to provided that no such consent shall be unreasonably withheld required if an Event of Default under paragraphs (a), (b), (h) or delayed(i) of Article VII shall have occurred and be continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (but shall not be obligated to)may, on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documentshereunder. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent Agent. Each Lender acknowledges and agrees that (i) the Loan Documents set forth the terms of a commercial lending facility, (ii) after it is engaged in making, acquiring or holding commercial loans and in providing other facilities set forth herein as may be applicable to such resignation Lender in the ordinary course of business, and not for as long as the purpose of purchasing, acquiring or holding any other type of them continues financial instrument (and each Lender agrees not to act assert a claim in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as contravention of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lenderforegoing), (aiii) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent Agent, the Joint Bookrunners or any other Lender Lender, or any of their 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 AgreementAgreement as a Lender, and to make, acquire or hold Loans hereunder and (iv) it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender, and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent Agent, the Joint Bookrunners or any other Lender Lender, or any other their of the Related Parties of any of the foregoing, and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Company and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunderthereunder and in deciding LEGAL02/41506940v2 Table of Contents (continued) Page whether or to the extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder. None of the Lenders or their Affiliates, if any, identified in this Agreement as a Joint Bookrunner, Co-Syndication Agent or joint lead arranger shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than, in the case of Lenders, those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders or such Affiliates 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 and their Affiliates in their respective capacities as Joint Bookrunners, Co-Syndication Agents or joint lead arrangers, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality exclusive right on behalf of the foregoing, Lenders to enforce the Administrative Agent shall not (x) be obligated payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out the terms of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.
Appears in 1 contract
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as 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 and or thereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights Each of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, Lenders and the Issuing Lenders Banks hereby irrevocably appoints the Collateral Agent as the collateral agent hereunder and under the Borrowers shall not 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 and authorizes the Collateral Agent to have all the rights and benefits hereunder and thereunder (or any other similar term) with reference 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 Administrative Collateral Agent is not intended to connote any fiduciary by the terms hereof or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead thereof, together with such term is used actions and powers as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting partiesare reasonably incidental thereto. 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requiresindicates, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of banking, trust or other business with any of the Borrowers Obligors (or any Subsidiary or other Affiliate thereof 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 of the Obligors or other Affiliate thereof for services in connection with this Agreement or otherwise without any duty having to account therefor for the same to the other Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and 9.02), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief LawLenders, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to any Lender or Issuing Bank 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, expressly provided for herein or as in the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 7.02 and 9.02other Loan Documents) or in the absence of its own fraud, gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgmentmisconduct. 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Defaulttherein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinherein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. 148 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, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one (1) 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 by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non non-appealable judgment that the Administrative Agent acted with fraud, gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying providing not less than thirty (30) days advance written notice to the Lenders, the Issuing Lenders Banks and the CompanyBorrower. Upon any such notice of resignation, the Required Lenders shall have the right, with the consent of the Company (Borrower not to be unreasonably withheld or delayed(or, if an Event of Default has occurred and is continuing in consultation with the Borrower), to appoint a successor, which is not a natural person, a Defaulting Lender or a Disqualified Lender. 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’s resignation shall nonetheless become effective at the end of such thirty (30) days period (except that in the case of any collateral security held by the Administrative Agent may (but shall not be obligated to), on behalf of the Lenders and or the Issuing Lenders, appoint, with the consent Banks under any of the Company (not Loan Documents, the retiring or removed Administrative Agent shall continue to be unreasonably withheld or delayed), hold such collateral security until such time as a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (xis appointed) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under (2) the other Loan Documents Required Lenders shall perform the duties of the Administrative Agent (and (b) except for any indemnity all payments or other amounts then owed to the retiring Administrative Agent, all payments, and communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly directly) until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent hereunderagent as provided for above in this paragraph. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents(if not already discharged therefrom as provided above in this paragraph). The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the its benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank Truist Bank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Bank and a Swingline Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company acceptance of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender)successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing XxxxxxBank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents Documents, and (c) the successor Xxxxxxx Xxxxxx Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank the retiring Issuing Bank to effectively assume the obligations of Citibank the retiring Issuing Bank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges agrees that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender Agreement and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties 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 Agreement and other Loan Document Documents to which it is a party. Except as otherwise provided in Section 9.02(b) or any related agreement or any document furnished hereunder or thereunder. The the Security Documents, the Administrative Agent shall not be responsible or have any liability formay, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality prior consent of the foregoingRequired Lenders (but not otherwise), consent to any modification, supplement or waiver under any of the Loan Documents, provided that, without the prior consent of each Lender and each Issuing Bank, the Administrative Agent shall not (xexcept as provided herein or in the Security Documents) be obligated 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 ascertainadditional obligations being secured by all or substantially all of such collateral security, monitor or inquire as alter the relative priorities of the obligations entitled to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability the benefits of the Liens created under the Security Documents with respect to all or arising out substantially all of any assignment or participation of Loansthe Collateral, or disclosure of confidential informationexcept 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 Disqualified Institution. It party) any Lien covering property that is agreed that the Syndication Agentsubject of either a disposition of property (including, without limitation, any property subject to a participation or repurchase transaction) not prohibited hereunder or a disposition to which the Co-Documentation Agents Required Lenders have consented, (2) release from any Guarantee and Security Agreement any “Subsidiary Guarantor” (and any property of such Subsidiary Guarantor) in accordance with Section 9.02(c) hereof and Section 10.03 of the Joint Lead Arrangers shall, Guarantee and Security Agreement and (3) spread Liens to any Designated Indebtedness or Hedging Agreement Obligations (as such terms are defined in their capacities as such, have no duties or responsibilities under this the Guarantee and Security Agreement) in accordance with the Guarantee and Security Agreement.
Appears in 1 contract
Samples: Secured Revolving Credit Agreement (Goldman Sachs Private Credit Corp.)
The Administrative Agent. Each of the Lenders Lenders, on behalf of itself and Issuing Lenders any of its Affiliates that are Secured Parties, hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect In addition, to the consent rights extent required under the laws of any jurisdiction other than the United States of America, each of the Company relating Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, hereby grants to a successor agent as set forth below, the Administrative Agent any required powers of attorney to execute any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. The provisions of this Article are solely for the benefit of the Administrative Agent, Agent and the Lenders, and neither the Issuing Lenders and the Borrowers Borrower nor any other Loan Party shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” as used 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 Lawlaw. Instead Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The Person 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 Agent, and 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 such bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lendershereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), provided that and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall be necessary, necessary under the circumstances as provided in Sections 7.02 and Section 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 final and nonappealable judgmentjurisdiction. 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of in any DefaultLoan Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other 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 IV or elsewhere hereinin 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, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities facility provided for herein as well as activities as Administrative Agent. The Subject to the appointment and acceptance of a successor Administrative Agent shall not be responsible for as provided in this paragraph, the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the consent of the Company (not to be unreasonably withheld or delayed)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 (but shall not be obligated to)may, on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documentshereunder. The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all Each Lender acknowledges and agrees that the rights, powers, privileges extensions of credit made hereunder are commercial loans and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit and not investments in substitution for the Letters of Credit, if any, outstanding at the time of such succession a business enterprise or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Creditsecurities. Each Lender and each Issuing Lender acknowledges 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 any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this AgreementAgreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender and each Issuing Lender also acknowledges that it willshall, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunderthereunder and in deciding whether or to the extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder. None of the Lenders, if any, identified in this Agreement as a Syndication Agent or Co-Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Syndication Agent or Co-Documentation Agents, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph. 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 not have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement. In its capacity, the Administrative Agent is a “representative” of the Secured Parties within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Administrative Agent to enter into each of the 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 responsible 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 have appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Secured Parties. The Lenders hereby authorize the Administrative Agent, at its option and in its discretion, to release any liability forLien granted to or held by the Administrative Agent upon any Collateral (i) as described in Section 9.02(d); (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 have any duty consented to ascertain, inquire into, monitor in writing by the Required Lenders or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality all of the foregoingLenders, 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 (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 (xii) such release shall not in any manner discharge, 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, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the Collateral. Any execution and delivery by the Administrative Agent of documents in connection with any such release shall be obligated without recourse to ascertain, monitor or inquire as to whether warranty by the Administrative Agent. In case of the pendency of any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability proceeding with respect to any Loan Party under any Federal, state or arising out foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any assignment Loan shall then be due and payable as herein expressed or participation by declaration or otherwise and irrespective of Loans, whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.otherwise:
Appears in 1 contract
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf the entity named as the Administrative Agent hereunder in the heading of this Agreement and its successors to serve as administrative agent 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 and thereofof the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to The Person serving as the consent Administrative Agent hereunder shall have the same rights of and powers in its capacity as a Lender, an Issuing Bank or a Swingline Lender as any other Lender, Issuing Bank or Swingline Lender and may exercise the Company relating to a successor agent same as set forth below, the provisions of this Article are solely for the benefit of though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Company or any of its Subsidiaries or other Affiliates as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders, and the Issuing Lenders and the Borrowers Banks or Swingline Lenders. The Administrative Agent shall not have rights as any duties or obligations except those expressly set forth 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 third party beneficiary of any of such provisions. It Default has occurred and is continuing (and 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 law, and that such term is used as a matter of market custom, custom and is intended to create or reflect only an administrative relationship between contracting parties. 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 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, 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 Borrowers or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing), (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing 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 Sections 7.02 and 9.02the Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counselopinion, may could expose the Administrative Agent to liability or that is be contrary to any Loan Document or applicable Lawlaw, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law rule or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawregulation, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries or other Affiliates that is communicated to or obtained by the 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, or as the Administrative Agent shall believe in good faith shall to be necessary, under the circumstances as provided in Sections 7.02 and 9.02the Loan Documents) or in the absence of its own gross negligence or willful misconduct as misconduct, with such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by a Borrower or a Lender, and the Company, another Borrower, a Lender or an Issuing Lender. The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein in any Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinin 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, signed or sent or otherwise authenticated by the proper 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 have been be made by the proper Person, and shall not incur may act upon any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender statement prior to the making receipt of such Loan or the issuance, extension, renewal or increase of such Letter of Creditwritten confirmation thereof. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowersany Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent, provided that, other than in the case of any such sub-agent that is an Affiliate of the Administrative Agent, the Administrative Agent shall provide prompt written notice of such appointment to the Company. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Subject to the appointment and acceptance of a successor Administrative Agent shall not be responsible for as provided in this paragraph, the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the consent of the Company (not to be unreasonably withheld or delayed)Company, to appoint one of the Lenders a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (but shall not be obligated to)may, on behalf of the Lenders and the Issuing Lenders, appoint, in consultation with the consent Company, appoint one of the Company (not to be unreasonably withheld or delayed), Lenders as a successor Administrative Agent Agent, which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor . If the Administrative Agent be is a Defaulting Lender or Disqualified Institution and pursuant to clause (yd) if of the Administrative Agent shall notify definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through remove the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until in its capacity as such time as the Required Lenders appointand, in consultation with the consent of the Company (not to be unreasonably withheld or delayed)Company, appoint a successor Administrative Agent hereundersuccessor. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged (to the extent not theretofore discharged) from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 10.03, 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 or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender Bank acknowledges that it has, independently and without reliance upon the Administrative Agent Agent, any Arranger, any Issuing Bank or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent Agent, any Arranger, any Issuing Bank or any other Lender Lender, or any other their 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, Agreement or any other Loan Document or any other related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible Each Lender, by delivering its signature page to this Agreement or have any liability forthe Amendment Agreement, or delivering its signature page to an Assignment and Acceptance or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have any duty acknowledged receipt of, and consented to ascertainand approved, inquire intoeach Loan Document and each other document required to be delivered to, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoingbe approved by or satisfactory to, the Administrative Agent or the Lenders on the Original Effective Date or the Amendment Effective Date. None of the Arrangers, the Syndication Agents or the Documentation Agents shall not have any duties or obligations under this Agreement or any other Loan Document (x) be obligated to ascertainexcept in its capacity, monitor or inquire as to whether any applicable, as a Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) an Issuing Bank), but all such Persons shall have any liability with respect to or arising out the benefit of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreementindemnities provided for hereunder.
Appears in 1 contract
Samples: Credit Agreement (Hess Corp)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably designates and appoints CitibankJPMorgan Chase Bank, N.A and its successors to serve as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and administrative agent under the other Loan Documents (and JPMorgan Chase Bank, N.A hereby accepts such appointment) and irrevocably 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Documents (or any other similar term) Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) duties, responsibilities, or other obligations arising under agency doctrine of any applicable Lawlaw. Instead Instead, such term is used as a matter of market custom, custom and is intended to create or reflect only an administrative relationship between contracting parties. 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the such Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent hereunder and without any duty to account therefor to the LendersLenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 powerspower, 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 by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary expressly provided for herein, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Sections 7.02 and 9.02the Loan Documents), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may could expose the Administrative Agent to liability or that is be contrary to this Agreement or any other Loan Document or applicable Lawlaw, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower, any Subsidiary or any other Affiliate of its Subsidiaries any of the foregoing that is communicated to or obtained by the 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, or as the Administrative Agent shall believe in good faith shall to be necessary, under the circumstances as provided in Sections 7.02 and 9.02the 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 nonappealable non-appealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by the Company, another Borrower, a Lender or an Issuing Lender. The 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein in this Agreement or therein any other Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement, Agreement or any other Loan Document or any other agreement, instrument or document, document or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinin this Agreement or any other 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the 364-Day Exposure or the component amounts thereof. 103 The Administrative Agent shall be entitled to rely uponrely, and shall not incur any liability for relying uponrelying, 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 or sent or otherwise authenticated by the proper PersonPerson (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 have been be made by the proper PersonPerson (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 thereonsuch statement prior to receipt of written confirmation thereof. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any an Issuing LenderBank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender Bank prior to the making of such Loan or the issuance, extension, renewal or increase issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), 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 hereunder and 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 of its their duties and exercise its their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, agent and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non non-appealable judgment that the Administrative Agent acted with gross negligence or willful wilful misconduct in the selection of such sub-agents. The Subject to the terms of this paragraph, the Administrative Agent may resign at any time by notifying upon 30 days’ written notice of its intent to resign from its capacity as such to the Lenders, the Issuing Lenders Banks and the CompanyBorrower. Subject to the terms of this paragraph, if the Person serving as the Administrative Agent becomes a Defaulting Lender pursuant to clause (d)(i) of the definition of “Defaulting Lender”, the Required Lenders may, to the extent permitted by applicable law, remove such Person as the Administrative Agent upon 30 days’ written notice to the Borrower and such Person. Upon receipt of any such resignationnotice of resignation or removal, the Required Lenders shall have the right, subject (unless an Event of Default under clauses (a), (b), (h) or (i) of Article VII with respect to the consent of Borrower shall have occurred and be continuing) to approval by the Company Borrower (which approval shall not to be unreasonably withheld withheld, conditioned or delayed), 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 resignationintent to resign (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to), on behalf of the Lenders and the Issuing LendersBanks, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent Agent, which shall be a bank with an office in New York, New York, and with an office in Canada the United States of America or an Affiliate of any such bank; provided that (x) in no event shall any such . Whether or not a successor Administrative Agent be a Defaulting Lender or Disqualified Institution has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date. If no successor shall have been so appointed by the Required Lenders and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has have accepted such appointmentappointment within 30 days after the Required Lenders give notice of removal (the “Removal Effective Date”) as provided in the third preceding sentence, then such resignation removal shall nonetheless become effective in accordance with such notice and (a) on the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunderRemoval 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 of the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the resignation effective dateAgent), and the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between by the Company Borrower and such successor. After Notwithstanding the foregoing, in the event no successor Administrative Agent’s 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 or the Required Lenders give notice of removal, as the case may be, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Borrower or the Required Lenders may give notice of removal to the other Lenders, the Issuing Banks and the Borrower, as the case may be, whereupon, on the date of effectiveness of such resignation or removal stated in such notice, (a) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, and (b) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Administrative Agent; provided that (i) all payments (except for indemnity payments owed to the retiring or removed Administrative Agent) 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 or removal from its capacity as such, the provisions of this Article and Section 9.03 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 or removed 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 (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken the matters referred to in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), proviso under clause (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Creditabove. Each Lender and each Issuing Lender Bank acknowledges that it has, independently and without reliance upon the Administrative Agent Agent, any Arranger or any other Lender or Issuing Bank, or any of their 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 Lender 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 other their 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. The Administrative Agent shall not be responsible or have any liability forEach 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 any duty acknowledged receipt of, and consented to ascertainand approved, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating and each other Loan Document and each other document required to Disqualified Institutions. Without limiting the generality of the foregoingbe delivered to, or be approved by or satisfactory to, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether the Lenders on the Effective Date. 106 In case of the pendency of any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability proceeding with respect to the Borrower under any Federal, State or arising out foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any assignment Loan or participation any LC Disbursement shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of Loans, whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.otherwise:
Appears in 1 contract
The Administrative Agent. In order to expedite the transactions contemplated by this Agreement, JPMorgan is hereby appointed to act as Administrative Agent on behalf of the Lenders and Issuing Banks. Each of the Lenders and each Issuing Lenders Bank hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to The Person serving as Administrative Agent hereunder shall have the consent same rights of and powers in its capacity as a Lender or a Swingline Lender as any other Lender or Swingline Lender and may exercise the Company relating to a successor agent same as set forth below, the provisions of this Article are solely for the benefit of though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders, and the Issuing Lenders and the Borrowers Banks or Swingline Lenders. The Administrative Agent shall not have rights as any duties or obligations except those expressly set forth in the 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 third party beneficiary of any of such provisions. It Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any other similar term) 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 law, and that such term is used as a matter of market custom, custom and is intended to create or reflect only an administrative relationship between contracting parties. 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 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, 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 Borrowers or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing), (b) the Administrative Agent shall not have any no duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and 9.02Section 10.02), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counselopinion, may could expose the Administrative Agent it to liability or that is 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 Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawlaw, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall have any no duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Company, any Borrowing Subsidiary or any of its Subsidiaries other Subsidiary that is communicated to or obtained by the 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, or as the Administrative Agent shall believe in good faith shall be necessary, necessary under the circumstances as provided in Sections 7.02 and 9.02Section 10.02) or in the absence of its own bad faith, 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 nonappealable judgment). The Administrative Agent shall not be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by a Borrower or a Lender, and the Company, another Borrower, a Lender or an Issuing Lender. The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of in any DefaultLoan Document, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, document or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinin 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, sent or otherwise authenticated by the proper PersonPerson (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 rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to have been be made by the proper PersonPerson (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the maker thereof), and shall not incur may act upon any liability for relying thereonsuch statement prior to receipt of written confirmation thereof. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any an Issuing LenderBank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior Bank sufficiently in advance to the making of such Loan or the issuance, extension, renewal or increase amendment of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowersany Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agentit. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.respective
Appears in 1 contract
Samples: Credit Agreement (Kellogg Co)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, the entity named as Administrative Agent, Agent in the heading of this Agreement and its successors to act on its behalf serve as the Administrative Agent hereunder under this Agreement and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except 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 Person and its Affiliates may accept deposits from, lend money 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 Company or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents with respect to the consent rights of the Company relating to a successor agent as set forth belowAdministrative Agent, the provisions of this Article are solely for the benefit of and the Administrative Agent’s duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (a) the Lenders, and the Issuing Lenders and the Borrowers Administrative Agent shall not have rights as be subject to any fiduciary or other implied duties, regardless of whether a third party beneficiary of any of such provisions. It Default has occurred and is continuing (and 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 law, and that such term is used as a matter of market custom, custom and is intended to create or reflect only an administrative relationship between contracting parties. 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 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, 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 Borrowers or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent (a) 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 powerspower, 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 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 Sections 7.02 and 9.02the Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counselopinion, may could expose the Administrative Agent to liability or that is 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 Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawlaw, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and the Administrative Agent shall not be liable for the failure to disclose, any information relating to the Company Company, any Subsidiary or any of its Subsidiaries other Affiliate thereof that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall to be necessary, under the circumstances as provided in Sections 7.02 and 9.02the Loan Documents) or in the absence of its own gross negligence or willful misconduct as (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by the Company, another Borrower, a any Lender or an any Issuing Lender. The 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith therewith, including with respect to the existence and the aggregate amount of any Designated Cash Management Obligations or therewithDesignated Hedge Obligations at any time, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein in any Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinin any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. The Administrative Agent neither warrants nor accepts responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to the rates in the definition of the term “Adjusted LIBO Rate” (or any component thereof) or with respect to any comparable or successor rate thereto, or replacement rate therefor (except such as shall result from the gross negligence or willful misconduct of the Administrative Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment). The Administrative Agent shall be entitled to rely uponrely, and shall not incur any liability for relying uponrelying, 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, sent or otherwise authenticated by the proper PersonPerson (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 have been be made by the proper PersonPerson (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 thereonsuch statement prior to receipt of written confirmation thereof. In determining compliance with any condition hereunder to the making of a Loan, Loan or the issuance, extensionamendment, renewal or increase extension of a any Letter of Credit, Credit that by its terms must be fulfilled to the satisfaction of a Lender or any an Issuing LenderBank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender Bank, as applicable, unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender Bank, as applicable, prior to the making of such Loan or the issuance, extension, renewal or increase of such event as to such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersCompany), independent accountants and other experts selected by itit with reasonable care, 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 For all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions purposes of this Article shall apply to any such sub-agent Agreement and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.:
Appears in 1 contract
Samples: Credit Agreement (Westinghouse Air Brake Technologies Corp)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, Jefferies (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf hereunder and under any other Loan Document, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms hereof and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers any Loan Party or any Subsidiary subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that the Administrative Agent shall not be under any obligation to provide such information to them. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) shall not be subject to any fiduciary or other implied dutiesduty, regardless of whether any Default or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligation arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a Default has occurred matter of market custom, and is continuingintended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powerspower, except discretionary rights and powers (1) that are expressly contemplated hereby or by the other Loan Documents and (2) that the Administrative Agent is required to exercise as directed in writing by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance Requirements of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and or in the any other Loan DocumentsDocument, 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 Company any Borrower or any of its Subsidiaries Affiliates that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be is necessary, or as the Administrative Agent shall believe believes in good faith shall be necessary, under the relevant circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct misconduct, as determined by the final judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyParent Borrower or any Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith with this Agreement or therewithany other Loan Document, (iii) the performance or observance of any of the covenantscovenant, agreements agreement or other terms term or conditions condition set forth herein in this Agreement or therein any other Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, Agreement or any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the Administrative Agent pursuant to this Agreement or any other Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere hereinin this Agreement or any other Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur (vii) any liability for relying uponproperty, book or record of any notice, request, certificate, consent, statement, instrument, document Loan Party or other writing any Affiliate thereof or (including any electronic message, Internet or intranet website posting or other distributionviii) believed compliance by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance Affiliated Lenders with any condition hereunder term hereof relating to Affiliated Lenders. Each Lender agrees that, except with the making written consent of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender Agent, it will not take any enforcement action hereunder or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by Document, accelerate the Obligations under any Loan Document, or through exercise any one right that it might otherwise have under applicable Requirements of Law or more sub-agents appointed by otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section 363 of the Administrative AgentBankruptcy Code or any other similar Disposition of Collateral (an “Insolvency Disposition”). The Administrative Agent and Notwithstanding the foregoing, any such sub-agent Lender may perform any and all of its duties and exercise take action to preserve or enforce its rights and powers against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations held by or through their respective Related Partiessuch Lender, including the filing of a proof of claim in a case under the Bankruptcy Code. The exculpatory provisions of this Article shall apply to any such sub-agent and Notwithstanding anything to the Related Parties contrary contained herein or in any of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article Borrowers, the Administrative Agent and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it was acting as being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms hereof, and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges rights and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or remedies under the other Loan Documents may be exercised solely by the Administrative Agent, and (cii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to an Insolvency Disposition), (A) the successor Xxxxxxx Xxxxxx Administrative Agent, as agent for and representative of the Secured Parties, shall issue letters of credit in substitution be entitled, for the Letters purpose of Creditbidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, if any, outstanding to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender Disposition and each Issuing Lender acknowledges that it has, independently and without reliance upon (B) the Administrative Agent or any other Lender may be the purchaser or licensor of all or any portion of their Related Parties and based on such documents and information Collateral at any such Disposition. 163 No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as it has deemed appropriate, made its own credit analysis and decision to enter into such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not Lenders hereby irrevocably authorizes (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is and by entering into a Disqualified Institution or (y) have any liability Hedge Agreement with respect to or arising out any Secured Hedging Obligation and/or by entering into documentation in connection with respect to any Banking Services Obligation, each of any assignment or participation the other Secured Parties hereby authorizes and shall be deemed to authorize) the Administrative Agent, on behalf of Loans, or disclosure of confidential informationall Secured Parties, to take any Disqualified Institution. It is agreed that of the Syndication Agent, following actions upon the Co-Documentation Agents and instruction of the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.Required Lenders:
Appears in 1 contract
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as 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 and or thereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights Each of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, Lenders and the Issuing Lenders Banks hereby irrevocably appoints the Collateral Agent as the collateral agent hereunder and under the Borrowers shall not 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 and authorizes the Collateral Agent to have all the rights and benefits hereunder and thereunder (or any other similar term) with reference 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 Administrative Collateral Agent is not intended to connote any fiduciary by the terms hereof or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead thereof, together with such term is used actions and powers as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting partiesare reasonably incidental thereto. 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requiresindicates, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of banking, trust or other business with any of the Borrowers Obligors (or any Subsidiary or other Affiliate thereof 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 of the Obligors or other Affiliate thereof for services in connection with this Agreement or otherwise without any duty having to account therefor for the same to the other Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and 9.02), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief LawLenders, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the 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, expressly provided for herein or as in the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 7.02 and 9.02other Loan Documents) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgmentmisconduct. 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Defaulttherein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinherein 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 electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one (1) 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 by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Banks and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (Borrower not to be unreasonably withheld or delayed(or, if an Event of Default has occurred and is continuing in consultation with the Borrower), to appoint a successor, which is not a natural person, a Defaulting Lender or a Disqualified Lender. 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’s resignation shall nonetheless become effective (except that in the case of any collateral security held by the Administrative Agent may (but shall not be obligated to), on behalf of the Lenders and or the Issuing Lenders, appoint, with the consent Banks under any of the Company (not Loan Documents, the retiring or removed Administrative Agent shall continue to be unreasonably withheld or delayed), hold such collateral security until such time as a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (xis appointed) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under (2) the other Loan Documents Required Lenders shall perform the duties of the Administrative Agent (and (b) except for any indemnity all payments or other amounts then owed to the retiring Administrative Agent, all payments, and communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly directly) until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent hereunderagent as provided for above in this paragraph. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents(if not already discharged therefrom as provided above in this paragraph). The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the its benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank Sumitomo Mitsui Banking Corporation as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Bank and a Swingline Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company acceptance of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender)successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing XxxxxxBank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents Documents, and (c) the successor Xxxxxxx Xxxxxx Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank the retiring Issuing Bank to effectively assume the obligations of Citibank the retiring Issuing Bank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges agrees that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender Agreement and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties 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 and other Loan Documents to which it is a party. Except as otherwise provided in Section 9.02(b) with respect to this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The the Administrative Agent shall not be responsible or have any liability formay, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality prior consent of the foregoingRequired Lenders (but not otherwise), consent to any modification, supplement or waiver under any of the Loan Documents, provided that, without the prior consent of each Lender and each Issuing Bank, the Administrative Agent shall not (xexcept as provided herein or in the Security Documents) be obligated 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 ascertainadditional obligations being secured by all or substantially all of such collateral security, monitor or inquire as alter the relative priorities of the obligations entitled to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability the benefits of the Liens created under the Security Documents with respect to all or arising out substantially all of any assignment or participation of Loansthe Collateral, or disclosure of confidential informationexcept 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 Disqualified Institution. It party) any Lien covering property that is agreed that the Syndication Agentsubject of either a disposition of property (including, without limitation, any property subject to a participation or repurchase transaction) not prohibited hereunder or a disposition to which the Co-Documentation Agents Required Lenders have consented, (2) release from any Guarantee and Security Agreement any “Subsidiary Guarantor” (and any property of such Subsidiary Guarantor) in accordance with Section 9.02(c) and (3) spread Liens to any Designated Indebtedness or Hedging Agreement Obligations (as such terms are defined in the Joint Lead Arrangers shall, Guarantee and Security Agreement) in their capacities as such, have no duties or responsibilities under this accordance with the Guarantee and Security Agreement.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Blue Owl Technology Income Corp.)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except The Borrower (a) may at any time, with respect to the consent rights of the Company relating to a successor agent as set forth belowRequired Lenders, replace the provisions Administrative Agent and (b) simultaneously with the replacement of this Article are solely for the benefit any Affiliate of the Administrative AgentAgent as Issuing Bank under Section 2.05(i), shall replace the LendersAdministrative Agent (it being understood that any such replacement Administrative Agent shall be a Person that serves as administrative agent for other credit facilities of a comparable size), PROVIDED that the Borrower may not replace such Administrative Agent or Issuing Bank unless, after giving effect to such replacement and each contemporaneous assignment the Issuing Lenders and Borrower shall have arranged in connection with such replacement (i) neither the Borrowers Administrative Agent nor any of its Affiliates shall not have rights as a third party beneficiary outstanding any Letter of Credit, Loan, LC Disbursement, Commitment or other obligation of any of such provisions. It is understood and agreed that the use of the term “agent” herein kind under this Agreement or in any other Loan Documents Document and (or any other similar termii) with reference to each of the Administrative Agent is not intended and its Affiliates shall have received payment in full of all amounts owing to connote any fiduciary it under or in respect of this Agreement and each 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 partiesLoan Document. The Person 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 Agent, and 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 such bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lendershereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 contem plated by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), provided that and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall be necessary, necessary under the circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgmentwilful 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithherewith, (iii) the performance or observance of any of the covenants, agreements agree ments or other terms or conditions set forth herein or therein or the occurrence of in any DefaultLoan Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinin any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. Notwithstanding anything herein to the contrary, no Lender identified as Co-Syndication Agent or Documentation Agent shall have any separate duties, responsibilities, obligations or authority as Co- Syndication Agent or Documentation 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, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Subject to the appointment and acceptance of a successor Administrative Agent shall not be responsible for as provided in this paragraph, the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Banks and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the consent of the Company (not to be unreasonably withheld or delayed)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 (but shall not be obligated to)may, on behalf of the Lenders and the Issuing LendersBanks, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documentshereunder. The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s 's resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.
Appears in 1 contract
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, the entity named as Administrative Agent, Agent in the heading of this Agreement and its successors to act on its behalf serve as the Administrative Agent hereunder administrative agent and collateral agent 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect In addition, to the consent rights extent required under the laws of any jurisdiction other than the United States of America, each of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, Lenders and the Issuing Lenders and Banks hereby grants to the Borrowers shall not have rights as a third party beneficiary Administrative Agent any required powers of attorney to execute any Security Document governed by the laws of such provisionsjurisdiction on such Xxxxxx’s or such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Documents (or any other similar term) Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable Lawlaw. Instead Instead, such term is used as a matter of market custom, custom and is intended to create or reflect only an administrative relationship between contracting parties. Without limiting the generality of the foregoing, the Lenders and the Issuing Banks hereby expressly authorize the Administrative Agent to execute any and all documents (including releases and intercreditor agreements) with respect to the Collateral (including any amendment, supplement, modification or joinder with respect thereto) and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Collateral Documents and acknowledge and agree that any such action by the Administrative Agent shall bind the Lenders. [[6121596]] 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 Agent, and 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 such Person and its Affiliates may accept deposits from, lend money 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 Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent hereunder and without any duty to account therefor to the LendersLenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing, (a) the Administrative Agent (a) 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 powerspower, 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 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 Sections 7.02 and 9.02the Loan Documents), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counselopinion, may could expose the Administrative Agent to liability or that is be contrary to this Agreement or any other Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawlaw, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower, any Subsidiary or any other Affiliate of its Subsidiaries any of the foregoing that is communicated to or obtained by the 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, or as the Administrative Agent shall believe in good faith shall to be necessary, under the circumstances as provided in Sections 7.02 and 9.02the Loan Documents) or in the absence of its own gross negligence or willful misconduct as (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by the Company, another Borrower, a Lender or an Issuing Lender. The 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.,
Appears in 1 contract
The Administrative Agent. Each of the Lenders Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, and the Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect In furtherance of the foregoing, and not in limitation, each of the Lenders authorizes the Administrative Agent to enter into one or more intercreditor agreements acceptable to the consent rights Administrative Agent in its sole discretion with parties to any Permitted Receivables Facility. Such intercreditor agreements may provide for, among other things, (i) the Administrative Agent’s and the Lenders’ forbearance of, and other limitations on, any exercise of remedies in respect of any equity interests in any Receivables Entity and/or any notes issued by any Receivables Entity to any Receivables Seller in connection with any Permitted Receivables Facility, in any case, that have been pledged to secure the Company relating to a successor agent as set forth belowObligations and/or (ii) disclaimers of interests on, the and releases of security interests in, any Receivables and Permitted Receivables Facility Assets. The provisions of this Article are solely for the benefit of the Administrative Agent, Agent and the LendersLenders (including the Swingline Lender and each Issuing Bank), and neither the Issuing Lenders and the Borrowers Company nor any other Loan Party shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” as used 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 Lawlaw. Instead Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The Person 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 Agent, and 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 such bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of business with the Borrowers Company or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lendershereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), provided that and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall be necessary, necessary under the circumstances as provided in Sections 7.02 and Section 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 final and nonappealable judgmentjurisdiction. 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 CompanyCompany or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of in any DefaultLoan Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other 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 IV or elsewhere hereinin 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, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersCompany), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (LKQ Corp)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofhereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the The provisions of this Article are solely for the benefit of the Administrative Agent, the LendersLenders and the Issuing Banks, and the Issuing Lenders and the Borrowers Loan Parties shall not have rights as a third third-party beneficiary of any of such provisions, except as set forth in the sixth, eighth and ninth paragraphs below. 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 Lawlaw. 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 Person 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 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 bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for for, and generally engage in any kind of business with the Borrowers Company, the Borrower or any Subsidiary of their respective Subsidiaries or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documentsherein, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (a) the Administrative Agent (a) 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 in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawlaw, and (c) shall not, except as expressly set forth herein and in herein, the other Loan Documents, Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Company, the Borrower or any of its their respective Subsidiaries that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall be is necessary, under the circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan DocumentAgreement, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Defaultdefault, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any the Issuing LenderBank issuing such Letter of Credit, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender Bank prior to the making of such Loan or the issuance, extension, renewal or increase issuance of such Letter of Credit. 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 BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent (a) may resign at any time by notifying the Lenders, the Issuing Lenders Banks and the CompanyBorrower, subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, or (b) may be removed as Administrative Agent by the Required Lenders (excluding the Lender then acting as Administrative Agent) if the Administrative Agent (i) is found by a court of competent jurisdiction in a final, non-appealable judgment to have committed gross negligence, bad faith or willful misconduct in the course of performing its duties hereunder or (ii) has become a Defaulting Lender. Upon any such resignationresignation or removal, the Required Lenders shall have the right, with the consent of the Company Borrower (not to be unreasonably withheld or delayedunless 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 thirty (30) days after the retiring Administrative Agent gives notice of its resignationresignation or upon the removal, then then, in the case of resignation by the Administrative Agent, the retiring Administrative Agent may (but shall not be obligated to)may, or in the case of removal of the Administrative Agent, the Required Lenders may, on behalf of the Lenders and the Issuing LendersBanks, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documentshereunder. The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all Each Lender acknowledges and agrees that the rights, powers, privileges extensions of credit made hereunder are commercial loans and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit and not investments in substitution for the Letters of Credit, if any, outstanding at the time of such succession a business enterprise or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Creditsecurities. Each Lender and each Issuing Lender acknowledges 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 any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this AgreementAgreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender and each Issuing Lender also acknowledges that it willshall, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunderthereunder 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. The Administrative Agent shall not be responsible Notwithstanding anything to the contrary contained herein or have in any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoingother Loan Document, the Administrative Agent shall not is hereby irrevocably authorized by each Lender (x) be obligated without requirement of notice to ascertain, monitor or inquire as to whether consent of any Lender except as expressly required by Section 9.02) to take any action requested by the Borrower having the effect of releasing any guarantee obligations (i) in connection with any transaction not prohibited by any Loan Document or Participant or prospective Lender or Participant is a Disqualified Institution that has been consented to in accordance with Section 9.02 or (yii) have any liability with respect under the circumstances described in the immediately succeeding paragraph below. Upon the Payment in Full, the Guarantors shall be automatically released from their obligations under the Loan Documents (other than those expressly stated to or arising out survive such termination), all without delivery of any assignment instrument or participation performance of Loans, or disclosure any act by any Person. Upon request of confidential information, to any Disqualified Institution. It is agreed that the Syndication AgentBorrower, the Co-Documentation Agents and the Joint Lead Arrangers Administrative Agent shall, at the Borrower’s expense, take all such action reasonably requested by the Borrower to release such Guarantor from its obligations under the Guaranty, in their capacities as such, have no duties or responsibilities under each case in accordance with the terms of the Loan Documents and this AgreementSection.
Appears in 1 contract
Samples: Credit and Term Loan Agreement (Four Corners Property Trust, Inc.)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents as its agent and authorizes the Administrative Agent to take such actions on its behalf behalf, including execution of the other Financing Documents and to exercise such powers as are delegated to the Administrative Agent by the terms hereof and thereofthe other Financing Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the The provisions of this Article are solely for the benefit of the Administrative Agent, Agent and the Lenders, Lenders (including the Swingline Lender and the Issuing Lenders Banks), and neither the Borrowers Borrower nor any other Loan Party shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” as used herein or in any other Loan Financing 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 Lawlaw. Instead Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The Person 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 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 such bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lendershereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Financing Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (a) the Administrative Agent (a) 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 Financing Documents that the Administrative Agent is required to exercise in writing as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), provided that and (c) except as expressly set forth in the Financing Documents, the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the any failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall be necessary, necessary under the circumstances as provided in Sections 7.02 and Section 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 final and nonappealable judgmentjurisdiction. 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Financing Document, (ii) the contents or accuracy of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Financing Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of in any DefaultFinancing Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Financing Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinin any Financing Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any 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 or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), 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 hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for In the negligence or misconduct of any sub-agents except to the extent event that a court petition seeking relief under Title 11 of competent jurisdiction determines in a final and non appealable judgment that the United States Code or any other Federal, state or foreign bankruptcy, insolvency, liquidation or similar law is filed by or against the Borrower or any other Person obligated under the Financing Document, the Administrative Agent acted with gross negligence or willful misconduct 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 selection 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 sub-agentsobligations owed to such Lender and, if so, take the steps necessary to prepare and timely file such individual claim. The Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Banks and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, with the consent approval of the Company Borrower (not to be unreasonably withheld or delayedwithheld, except that no such approval shall be required upon the occurrence and continuance of an Event of 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 (but shall not be obligated to)may, on behalf of the Lenders and the Issuing LendersBanks, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance bank with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunderan office. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documentshereunder. The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all Each Lender acknowledges and agrees that the rights, powers, privileges extensions of credit made hereunder are commercial loans and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit and not investments in substitution for the Letters of Credit, if any, outstanding at the time of such succession a business enterprise or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Creditsecurities. Each Lender and each Issuing Lender acknowledges 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 any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this AgreementAgreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender and each Issuing Lender also acknowledges that it willshall, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunderthereunder and in deciding whether or to the extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder. None of the Lenders, if any, identified in this Agreement as a Syndication Agent or Co-Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Syndication Agent or Co-Documentation Agents, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph. 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 not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality exclusive right on behalf of the foregoing, Lenders to enforce the Administrative Agent shall not (x) be obligated payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out the terms of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Cubic Corp /De/)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as 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 and or thereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights Each of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, Lenders and the Issuing Lenders Banks hereby irrevocably appoints the Collateral Agent as the collateral agent hereunder and under the Borrowers shall not 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 and authorizes the Collateral Agent to have all the rights and benefits hereunder and thereunder (or any other similar term) with reference 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 Administrative Collateral Agent is not intended to connote any fiduciary by the terms hereof or other implied (or express) obligations arising under agency doctrine of any applicable Lawthereof, together with such actions and powers as are reasonably incidental thereto. 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. 148 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requiresindicates, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of banking, trust or other business with any of the Borrowers Obligors (or any Subsidiary or other Affiliate thereof 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 of the Obligors or other Affiliate thereof for services in connection with this Agreement or otherwise without any duty having to account therefor for the same to the other Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and 9.02), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief LawLenders, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the 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, expressly provided for herein or as in the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 7.02 and 9.02other Loan Documents) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgmentmisconduct. 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Defaulttherein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinherein 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 electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one (1) 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 by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Banks and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (Borrower not to be unreasonably withheld or delayed(or, if an Event of Default has occurred and is continuing in consultation with the Borrower), to appoint a successor, which is not a natural person, a Defaulting Lender or a Disqualified Lender. 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’s resignation shall nonetheless become effective (except that in the case of any collateral security held by the Administrative Agent may (but shall not be obligated to), on behalf of the Lenders and or the Issuing Lenders, appoint, with the consent Banks under any of the Company (not Loan Documents, the retiring or removed Administrative Agent shall continue to be unreasonably withheld or delayed), hold such collateral security until such time as a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (xis appointed) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under (2) the other Loan Documents Required Lenders shall perform the duties of the Administrative Agent (and (b) except for any indemnity all payments or other amounts then owed to the retiring Administrative Agent, all payments, and communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly directly) until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent hereunderagent as provided for above in this paragraph. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents(if not already discharged therefrom as provided above in this paragraph). The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the its benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank SMBC as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Bank and a Swingline Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company acceptance of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender)successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing XxxxxxBank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents Documents, and (c) the successor Xxxxxxx Xxxxxx Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank the retiring Issuing Bank to effectively assume the obligations of Citibank the retiring Issuing Bank with respect to such Letters of Credit. 150 Each Lender and each Issuing Lender acknowledges agrees that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender Agreement and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties 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 and other Loan Documents to which it is a party. Except as otherwise provided in Section 9.02(b) with respect to this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The the Administrative Agent shall not be responsible or have any liability formay, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality prior consent of the foregoingRequired Lenders (but not otherwise), consent to any modification, supplement or waiver under any of the Loan Documents; provided that, without the prior consent of each Lender and each Issuing Bank, the Administrative Agent shall not (except as provided herein or in the Security Documents) release all or substantially all of the Collateral or otherwise terminate all or substantially all of the Liens under any Security Document providing for collateral security, agree to additional obligations being secured by all or substantially all of such collateral security (excluding (x) be obligated any increase in the Loans and Letters of Credit hereunder pursuant to ascertaina Commitment Increase under Section 2.08(e), monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability increase in any Other Secured Indebtedness or Shorter Term Secured Indebtedness permitted hereunder and (z) the spreading of such Liens to any Designated Indebtedness or Hedging Agreement Obligations (as defined in the Guarantee and Security Agreement) as provided for in the Guarantee and Security Agreement), 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 arising out substantially all of any assignment or participation of Loansthe Collateral, or disclosure of confidential informationexcept that no such consent shall be required, and the Administrative Agent is hereby authorized (and so agrees with the Borrower), to direct the Collateral Agent under the Guarantee and Security Agreement, subject to any Disqualified Institution. It is agreed that applicable requirements under Section 10.03 of the Syndication AgentGuarantee and Security Agreement, the Co-Documentation Agents to (1) release any Lien covering property in accordance with Section 9.02(c) hereof and the Joint Lead Arrangers shall(2) release from any Guarantee and Security Agreement any “Subsidiary Guarantor” (and any property of such Subsidiary Guarantor) in accordance with Section 9.02(c) and (3) deliver such documents to evidence such releases in accordance with Section 9.02(c) hereof, in their capacities each case of the foregoing clauses (1) through (3), (A) if no Designated Indebtedness is outstanding as suchof such time, have automatically and with no duties or responsibilities further action from any other party and (B) otherwise, subject to any applicable requirements under this Section 10.03 of the Guarantee and Security Agreement.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (BlackRock Private Credit Fund)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, DBNY (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers any Loan Party or any Subsidiary subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and without acknowledge that the Administrative Agent shall not be under any duty obligation to account therefor provide such information to the Lendersthem. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law; it being understood that such term is used merely as a matter of market custom, and is continuingintended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powerspower, except discretionary rights and powers that are expressly contemplated hereby or by the other Loan Documents that and which the Administrative Agent is required to exercise in writing as directed in writing by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Lawlaws, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect affect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the relevant circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct misconduct, as determined by the final judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyBorrower or any Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenantscovenant, agreements agreement or other terms term or conditions condition set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in Article IV or elsewhere hereinin any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative AgentAgent or (vii) any property, book or record of any Loan Party or any Affiliate thereof. The Administrative Agent shall be entitled to rely upon, and shall not incur If 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making Lender acquires knowledge of a LoanDefault or Event of Default, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, it shall promptly notify the Administrative Agent may presume that such condition is satisfactory to such and the other Lenders thereof in writing. Each Lender or such Issuing Lender unless agrees that, except with the written consent of the Administrative Agent shall have received notice to the contrary from such Lender Agent, it will not take any enforcement action hereunder or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by Document, accelerate the Obligations under any Loan Document, or through exercise any one right that it might otherwise have under applicable law or more sub-agents appointed by otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section 363 of the Administrative AgentBankruptcy Code or other similar Dispositions of Collateral. The Administrative Agent and any such sub-agent Notwithstanding the foregoing, however, a Lender may perform any and all of its duties and exercise take action to preserve or enforce its rights and powers against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations held by or through their respective Related Partiessuch Lender, including the filing of a proof of claim in a case under the Bankruptcy Code. The exculpatory provisions of this Article shall apply to any such sub-agent and Notwithstanding anything to the Related Parties contrary contained herein or in any of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions Borrower, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of this Article the Collateral or to enforce the Loan Guaranty; it being understood and Section 9.03 shall continue in effect for agreed that all powers, rights and remedies hereunder may be exercised solely by, the benefit of such retiring Administrative Agent, its sub-agents and their respective Related on behalf of the Secured Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent accordance with the terms hereof and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges rights and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or remedies under the other Loan Documents may be exercised solely by, the Administrative Agent, and (cii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the successor Xxxxxxx Xxxxxx Administrative Agent, as agent for and representative of the Secured Parties, shall issue letters of credit in substitution be entitled, for the Letters purpose of Creditbidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, if any, outstanding to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender Disposition and each Issuing Lender acknowledges that it has, independently and without reliance upon (B) the Administrative Agent or any other Lender may be the purchaser or licensor of any or all of their Related Parties and based on such documents and information Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as it has deemed appropriate, made its own credit analysis and decision to enter into such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not Lenders hereby irrevocably authorizes (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is and by entering into a Disqualified Institution or (y) have any liability Hedge Agreement with respect to or arising out any Secured Hedging Obligation and/or by entering into documentation in connection with any Banking Services Obligation, each of any assignment or participation of Loans, or disclosure of confidential information, the other Secured Parties hereby authorizes and shall be deemed to any Disqualified Institution. It is agreed that authorize) the Syndication Administrative Agent, on behalf of all Secured Parties to take any of the Co-Documentation Agents and following actions upon the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.instruction of the Required Lenders:
Appears in 1 contract
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks, on behalf of itself and its applicable Affiliates and in their respective capacities as such and as Secured Parties in respect of any Secured Hedging Obligations or Banking Services Obligations, as applicable, hereby irrevocably appoints Citibank, Credit Suisse (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf behalf, including execution of the other Loan Documents or any other documents with respect to the rights of the Secured Parties and the Collateral as contemplated by this Agreement and the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms hereof and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights 171 [[5470263]] Each of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, Secured Parties hereby irrevocably appoints and the Issuing Lenders and the Borrowers shall not 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 authorizes the Administrative Agent is not intended (as collateral agent) to connote act as the agent of (and to hold any fiduciary security interest created by the Loan Documents for and on behalf of or other implied (or expresson trust for) obligations arising under agency doctrine such Secured Party for purposes of acquiring, holding and enforcing any applicable Lawand all Liens on Collateral granted by the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. Instead Each Secured Party agrees that any such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting partiesactions by the Administrative Agent shall bind such Secured Party. The 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers any Loan Party or any Subsidiary subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and without acknowledge that the Administrative Agent shall not be under any duty obligation to account therefor provide such information to the Lendersthem. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is continuingintended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powerspower, except discretionary rights and powers that are expressly contemplated hereby or by the other Loan Documents that and which the Administrative Agent is required to exercise in writing as directed in writing by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance Requirements of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the relevant circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct misconduct, as determined by the final judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyCompany or any Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) 172 [[5470263]] the performance or observance of any of the covenantscovenant, agreements agreement or other terms term or conditions condition set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere hereinin 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 uponor (vii) any property, and shall not incur book or record of 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender Loan Party or any Issuing LenderAffiliate thereof; provided, further that, the Administrative Agent may presume that such condition foregoing paragraph is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel solely for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties benefit of the Administrative Agent and not any such sub-agentLender. Each Lender agrees that, and shall apply to their respective activities in connection except with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the written consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all paymentsit will not take any enforcement action hereunder or under any other Loan Document, communications and determinations provided accelerate the Obligations under any Loan Document, or exercise any right that it might otherwise have under applicable law or otherwise to be made bycredit bid at any foreclosure sale, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appointUCC sale, with the consent any sale under Section 363 of the Company (not to be unreasonably withheld Bankruptcy Code or delayed)other similar Dispositions of Collateral. Notwithstanding the foregoing, however, except as otherwise expressly limited herein, a successor Administrative Agent hereunder. Upon the acceptance of Lender may take action to preserve or enforce its appointment as Administrative Agent hereunder by rights against a successorLoan Party where a deadline or limitation period is applicable that would, absent such successor shall succeed to and become vested with all action, bar enforcement of the rightsObligations held by such Lender, powers, privileges and duties including the filing of a proof of claim in a case under the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed Bankruptcy Code. Notwithstanding anything to the retiring Administrative Agent as contrary contained herein or in any of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article Borrower, the Administrative Agent and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it was acting as being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms hereof and all powers, rights and remedies under the other Loan Documents may be exercised solely by the Administrative Agent and (ii) after such resignation for as long as in the event of a foreclosure by the Administrative Agent on any of them continues the Collateral pursuant to act a public or private sale or in any capacity hereunder or under the other Loan Documents, including in respect event of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, other Disposition (including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon 363 of the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting LenderBankruptcy Code), (aA) such successor shall succeed to the Administrative Agent, as agent for and become vested with all representative of the rightsSecured Parties, powersshall be entitled, privileges for the purpose of bidding and duties making settlement or payment of the retiring Issuing Xxxxxxpurchase price for all or any portion of the Collateral sold at any such sale, (b) to use and apply all or any portion of the retiring Issuing Lender shall be discharged from all Obligations as a credit on account of their respective duties and obligations hereunder or under the other Loan Documents purchase price for any Collateral payable by the Administrative Agent at such Disposition and (cB) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender may be the purchaser or licensee of all or any portion of their Related Parties and based on such documents and information Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as it has deemed appropriate, made its own credit analysis and decision to enter into such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not Lenders hereby irrevocably authorizes (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is and by entering into a Disqualified Institution or (y) have any liability Hedge Agreement with respect to or arising out any Secured Hedging Obligation and/or by entering into documentation in connection with any Banking Services Obligation, each of any assignment or participation the other Secured Parties hereby authorizes and shall be deemed to authorize) the Administrative Agent, on behalf of Loans, or disclosure of confidential informationall Secured Parties, to take any Disqualified Institution. It is agreed that of the Syndication Agent, following actions upon the Co-Documentation Agents and instruction of the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.Required Lenders:
Appears in 1 contract
The Administrative Agent. Each of the Lenders and Issuing Lenders hereby irrevocably appoints Citibank, Credit Suisse (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers any Loan Party or any Subsidiary subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and without acknowledge that the Administrative Agent shall not be under any duty obligation to account therefor provide such information to the Lendersthem. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law; it being understood that such term is used merely as a matter of market custom, and is continuingintended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powerspower, except discretionary rights and powers that are expressly contemplated hereby or by the other Loan Documents that and which the Administrative Agent is required to exercise in writing as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawlaws, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Parent Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party 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, or as the Administrative Agent shall believe in good faith shall be necessary, under the relevant circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct misconduct, as determined by the final judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyParent Borrower or any Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenantscovenant, agreements agreement or other terms term or conditions condition set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere hereinin any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative AgentAgent or (vii) any property, book or record of any Loan Party or any Affiliate thereof. The Administrative Agent shall be entitled to rely upon, and shall not incur If 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making Lender acquires knowledge of a LoanDefault or Event of Default, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, it shall promptly notify the Administrative Agent may presume that such condition is satisfactory to such and the other Lenders thereof in writing. Each Lender or such Issuing Lender unless agrees that, except with the written consent of the Administrative Agent shall have received notice to the contrary from such Lender Agent, it will not take any enforcement action hereunder or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by Document, accelerate the Obligations under any Loan Document, or through exercise any one right that it might otherwise have under applicable law or more sub-agents appointed by otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section 363 of the Administrative AgentBankruptcy Code or other similar Dispositions of Collateral. The Administrative Agent and any such sub-agent Notwithstanding the foregoing, however, a Lender may perform any and all of its duties and exercise take action to preserve or enforce its rights and powers against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations held by or through their respective Related Partiessuch Lender, including the filing of a proof of claim in a case under the Bankruptcy Code. The exculpatory provisions of this Article shall apply to any such sub-agent and Notwithstanding anything to the Related Parties contrary contained herein or in any of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions Borrowers, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of this Article the Collateral or to enforce the Loan Guaranty; it being understood and Section 9.03 shall continue in effect for agreed that all powers, rights and remedies hereunder may be exercised solely by, the benefit of such retiring Administrative Agent, its sub-agents and their respective Related on behalf of the Secured Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent accordance with the terms hereof and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges rights and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or remedies under the other Loan Documents may be exercised solely by, the Administrative Agent, and (cii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the successor Xxxxxxx Xxxxxx Administrative Agent, as agent for and representative of the Secured Parties, shall issue letters of credit in substitution be entitled, for the Letters purpose of Creditbidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, if any, outstanding to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender Disposition and each Issuing Lender acknowledges that it has, independently and without reliance upon (B) the Administrative Agent or any other Lender may be the purchaser or licensor of any or all of their Related Parties and based on such documents and information Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as it has deemed appropriate, made its own credit analysis and decision to enter into such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not Lenders hereby irrevocably authorizes (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is and by entering into a Disqualified Institution or (y) have any liability Hedge Agreement with respect to or arising out any Secured Hedging Obligation and/or by entering into documentation in connection with any Banking Services Obligation, each of any assignment or participation of Loans, or disclosure of confidential information, the other Secured Parties hereby authorizes and shall be deemed to any Disqualified Institution. It is agreed that authorize) the Syndication Administrative Agent, on behalf of all Secured Parties to take any of the Co-Documentation Agents and following actions upon the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.instruction of the Required Lenders:
Appears in 1 contract
The Administrative Agent. Each of the Lenders Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, and the Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect In addition, to the consent rights extent required under the laws of any jurisdiction other than the United States of America, each of the Company relating Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, and each of the Issuing Banks hereby grants to a successor agent as set forth below, the Administrative Agent any required powers of attorney to execute any Collateral Document governed by the laws of such jurisdiction on such Lender’s or such Issuing Bank’s behalf. The provisions of this Article are solely for the benefit of the Administrative Agent, Agent and the Lenders, Lenders (including the Swingline Lender and the Issuing Lenders Banks), and neither the Borrowers Company nor any other Loan Party shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” as used 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 Lawlaw. Instead Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. 101 The Person 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 Agent, and 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 such bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of business with the Borrowers Company or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lendershereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), provided that and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall be necessary, necessary under the circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction. 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 CompanyCompany or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of in any DefaultLoan Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other 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 IV or elsewhere hereinin 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, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersCompany), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Subject to the appointment and acceptance of a successor Administrative Agent shall not be responsible for as provided in this paragraph, the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the consent of the Company (not to be unreasonably withheld or delayed)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 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (but shall not be obligated to)may, on behalf of the Lenders and the Issuing LendersBanks, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that . If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (xd)(1) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in no event shall any writing to the Company and such Person remove such Person as Administrative Agent and, in consultation with the Company, appoint a successor Administrative Agent which shall be a Defaulting Lender bank with an office in New York, New York, or Disqualified Institution an Affiliate of any such bank. If no such successor shall have been so appointed by the Required Lenders and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has have accepted such appointmentappointment within thirty (30) days (the “Removal Effective Date”), then such resignation removal shall nonetheless become effective in accordance with such notice and (a) on the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunderRemoval 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 of the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documentshereunder. The fees payable by the Company any Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company such Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentsor removal hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all Each Lender acknowledges and agrees that the rights, powers, privileges extensions of credit made hereunder are commercial loans and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit and not investments in substitution for the Letters of Credit, if any, outstanding at the time of such succession a business enterprise or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Creditsecurities. Each Lender and each Issuing Lender acknowledges 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 of the credit facilities evidenced by this Agreement or any other Lender or any of and their respective Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this AgreementAgreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender and each Issuing Lender also acknowledges that it willshall, independently and without reliance upon the Administrative Agent Agent, any arranger of the credit facilities evidenced by this Agreement or any amendment thereof or any other Lender or any other and their respective Related Parties 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 Company and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunderthereunder and in deciding whether or to the extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder. None of the Lenders, if any, identified in this Agreement as a Co-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 Co-Syndication Agent or Co-Documentation Agent, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph. 103 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 not have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement. In its capacity, the Administrative Agent is a “representative” of the Secured Parties within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Administrative Agent to enter into each of the 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 responsible exercised solely by the Administrative Agent, on behalf of itself and the other 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 have appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent, on behalf of itself and the other Secured Parties. The Lenders hereby authorize the Administrative Agent, at its option and in its discretion, to release any liability forLien granted to or held by the Administrative Agent upon any Collateral (i) as described in Section 9.02(d); (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 have any duty consented to ascertain, inquire into, monitor in writing by the Required Lenders or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality all of the foregoingLenders, as applicable, and upon at least five (5) Business Days’ prior written request by the Company 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, on behalf of itself and the other Secured Parties, 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 (xii) such release shall not in any manner discharge, affect or impair the Secured Obligations or any Liens upon (or obligations of the Company or any Subsidiary in respect of) all interests retained by the Company or any Subsidiary, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the Collateral. Any execution and delivery by the Administrative Agent of documents in connection with any such release shall be obligated without recourse to ascertain, monitor or inquire as to whether warranty by the Administrative Agent. In case of the pendency of any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability proceeding with respect to any Loan Party under any Federal, state or arising out foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any assignment Loan or participation any LC Disbursement shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of Loans, whether the Administrative Agent shall have made any demand on the Company) shall be entitled and empowered (but not obligated) by intervention in such proceeding or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.otherwise:
Appears in 1 contract
Samples: Credit Agreement (Cimpress N.V.)
The Administrative Agent. Each of the Lenders Lenders, on behalf of itself and any of its Affiliates that are holders of Obligations, and the Issuing Lenders Bank hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the The provisions of this Article are solely for the benefit of the Administrative Agent, Agent and the LendersLenders (including the Issuing Bank), and neither the Issuing Lenders and the Borrowers Company nor any other Loan Party shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” as used 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 Lawlaw. Instead Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The Person 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 Agent, and 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 such bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of business with the Borrowers Company or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lendershereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), provided that and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall be necessary, necessary under the circumstances as provided in Sections 7.02 and Section 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 final and nonappealable judgmentjurisdiction. 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 CompanyCompany or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of in any DefaultLoan Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinin 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, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersCompany), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Subject to the appointment and acceptance of a successor Administrative Agent shall not be responsible for as provided in this paragraph, the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Bank and the Company. Upon any such resignation, the Required Lenders shall have the rightright to appoint a successor, with which successor shall be consented to by the Company at all times other than during the occurrence and continuance of an Event of Default (which consent of the Company (shall not to be unreasonably withheld or delayed), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment appointment, and/or the consent of the Company (if required pursuant to the immediately preceding sentence) has not been granted, within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (but shall not be obligated to)may, on behalf of the Lenders and the Issuing Lenders, appointBank, with the consent of the Company at all times other than during the occurrence and continuance of an Event of Default (which consent of the Company shall not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documentshereunder. The fees payable by the Company any Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company such Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all Each Lender acknowledges and agrees that the rights, powers, privileges extensions of credit made hereunder are commercial loans and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit and not investments in substitution for the Letters of Credit, if any, outstanding at the time of such succession a business enterprise or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Creditsecurities. Each Lender and each Issuing Lender acknowledges 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 any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this AgreementAgreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender and each Issuing Lender also acknowledges that it willshall, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties 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 Company and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunderthereunder and in deciding whether or to the extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder. None of the Lenders, if any, identified in this Agreement as a Co-Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Co-Documentation Agents, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality exclusive right on behalf of the foregoing, Lenders to enforce the Administrative Agent shall not (x) be obligated payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out the terms of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Analogic Corp)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, Barclays (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 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 the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers Loan Parties or any Subsidiary subsidiary of a Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and without acknowledge that the Administrative Agent shall not be under any duty obligation to account therefor provide such information to the Lendersthem. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuingcontinuing and without limiting the generality of the foregoing, the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law and instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise in writing as directed in writing by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawlaws, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company any Loan Party or any of its Subsidiaries that is communicated to or obtained by the 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 Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct as determined by the final judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyBorrower or any Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty 149 or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of Liens on the Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere hereinin any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative AgentAgent or (vii) the properties, books or records of any Loan Party or any Affiliate thereof. The Administrative Agent shall be entitled to rely upon, and shall not incur If 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making Lender acquires knowledge of a LoanDefault or Event of Default, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, it shall promptly notify the Administrative Agent may presume that such condition is satisfactory to such and the other Lenders thereof in writing. Each Lender or such Issuing Lender unless agrees that, except with the written consent of the Administrative Agent shall have received notice to the contrary from such Lender Agent, it will not take any enforcement action hereunder or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by Document, accelerate the Obligations under any Loan Document, or through exercise any one right that it might otherwise have under applicable law or more sub-agents appointed by otherwise to credit bid at foreclosure sales, UCC sales, any sale under Section 363 of the Administrative AgentBankruptcy Code or other similar Dispositions of Collateral. The Administrative Agent and any such sub-agent Notwithstanding the foregoing, however, a Lender may perform any and all of its duties and exercise take action to preserve or enforce its rights and powers against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations held by or through their respective Related Partiessuch Lender, including the filing of proofs of claim in a case under the Bankruptcy Code. The exculpatory provisions of this Article shall apply to any such sub-agent and Notwithstanding anything to the Related Parties contrary contained herein or in any of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions Loan Parties, the Administrative Agent and each Secured Party agrees that (i) no Secured Party shall have any right individually to realize upon any of this Article the Collateral or to enforce the Loan Guaranty, it being understood and Section 9.03 shall continue in effect for agreed that all powers, rights and remedies hereunder may be exercised solely by the benefit of such retiring Administrative Agent, its sub-agents and their respective Related on behalf of the Secured Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent accordance with the terms hereof and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges rights and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or remedies under the other Loan Documents may be exercised solely by the Administrative Agent, and (cii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the successor Xxxxxxx Xxxxxx Administrative Agent, as agent for and representative of the Secured Parties, shall issue letters of credit in substitution be entitled, for the Letters purpose of Creditbidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such Disposition, if any, outstanding to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender Disposition and each Issuing Lender acknowledges that it has, independently and without reliance upon (B) the Administrative Agent or any other Lender may be the purchaser or licensor of any or all of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into Collateral at any such Disposition. 150 No holder of Secured Hedging Obligations or Banking Services Obligations shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Guarantor under this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not Lenders hereby irrevocably authorizes (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is and by entering into a Disqualified Institution or (y) have any liability Hedge Agreement with respect to or arising out Secured Hedging Obligations and/or by entering into documentation in connection with Banking Services Obligations, each of any assignment or participation of Loans, or disclosure of confidential information, the other Secured Parties hereby authorizes and shall be deemed to any Disqualified Institution. It is agreed that authorize) the Syndication Administrative Agent, on behalf of all Secured Parties to take any of the Co-Documentation Agents and following actions upon the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.instruction of the Required Lenders:
Appears in 1 contract
The Administrative Agent. Each of the Lenders and Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf the entity named as the Administrative Agent hereunder in the heading of this Agreement and its successors to serve as administrative agent 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 and thereofhereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to The Person serving as the consent Administrative Agent hereunder shall have the same rights of and powers in its capacity as a Lender, an Issuing Bank or a Swingline Lender as any other Lender, Issuing Bank or Swingline Lender and may exercise the Company relating to a successor agent same as set forth below, the provisions of this Article are solely for the benefit of though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Company or any of its Subsidiaries or other Affiliates as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders, and the Issuing Lenders and the Borrowers Banks or Swingline Lenders. The Administrative Agent shall not have rights as 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 third party beneficiary of any of such provisions. It Default has occurred and is continuing (and 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 law, and that such term is used as a matter of market custom, custom and is intended to create or reflect only an administrative relationship between contracting parties. 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 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, 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 Borrowers or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent (a) 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 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 Sections 7.02 and 9.02the Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counselopinion, may could expose the Administrative Agent to liability or that is be contrary to any Loan Document or applicable Lawlaw, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law rule or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawregulation, and (c) shall not, except as expressly set forth herein and in herein, the other Loan Documents, Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries or other Affiliates that is communicated to or obtained by the 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, or as the Administrative Agent shall believe in good faith shall to be necessary, under the circumstances as provided in Sections 7.02 and 9.02the Loan Documents) or in the absence of its own gross negligence or willful misconduct as misconduct, with such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by a Borrower or a Lender, and the Company, another Borrower, a Lender or an Issuing Lender. The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein in any Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, signed or sent or otherwise authenticated by the proper 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 have been be made by the proper Person, and shall not incur may act upon any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender statement prior to the making receipt of such Loan or the issuance, extension, renewal or increase of such Letter of Creditwritten confirmation thereof. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowersany Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent, provided that, other than in the case of any such sub-agent that is an Affiliate of the Administrative Agent, the Administrative Agent shall provide prompt written notice of such appointment to the Company. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Subject to the appointment and acceptance of a successor Administrative Agent shall not be responsible for as provided in this paragraph, the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the consent of the Company (not to be unreasonably withheld or delayed)Company, to appoint one of the Lenders a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (but shall not be obligated to)may, on behalf of the Lenders and the Issuing Lenders, appoint, in consultation with the consent Company, appoint one of the Company (not to be unreasonably withheld or delayed), Lenders as a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor . If the Administrative Agent be is a Defaulting Lender or Disqualified Institution and pursuant to clause (yd) if of the Administrative Agent shall notify definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through remove the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until in its capacity as such time as the Required Lenders appointand, in consultation with the consent of the Company (not to be unreasonably withheld or delayed)Company, appoint a successor Administrative Agent hereundersuccessor. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documentshereunder. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 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 (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent Agent, any Issuing Bank or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent Agent, any Issuing Bank or any other Lender Lender, or any other their 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. The Administrative Agent shall not be responsible or have any liability forEach Lender, by delivering its signature page to this Agreement, or delivering its signature page to an Assignment and Acceptance or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have any duty acknowledged receipt of, and consented to ascertainand approved, inquire intoeach Loan Document and each other document required to be delivered to, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoingbe approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date. None of the Arrangers, the Syndication Agents or the Documentation Agents shall not have any duties or obligations under this Agreement or any other Loan Document (x) be obligated to ascertainexcept in its capacity, monitor or inquire as to whether any applicable, as a Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) an Issuing Bank), but all such Persons shall have any liability with respect to or arising out the benefit of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreementindemnities provided for hereunder.
Appears in 1 contract
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as 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 and or thereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights Each of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, Lenders and the Issuing Lenders Banks hereby irrevocably appoints the Collateral Agent as the collateral agent hereunder and under the Borrowers shall not 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 and authorizes the Collateral Agent to have all the rights and benefits hereunder and thereunder (or any other similar term) with reference 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 Administrative Collateral Agent is not intended to connote any fiduciary by the terms hereof or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead thereof, together with such term is used actions and powers as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting partiesare reasonably incidental thereto. 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requiresindicates, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of banking, trust or other business with any of the Borrowers Obligors (or any Subsidiary or other Affiliate thereof 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 of the Obligors or other Affiliate thereof for services in connection with this Agreement or otherwise without any duty having to account therefor for the same to the other Lenders. The Administrative Agent and the Sustainability Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (a) each of the Administrative Agent (a) and the Sustainability Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) each of the Administrative Agent and the Sustainability Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except except, in the case of the Administrative Agent, 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 by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and 9.02), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief LawLenders, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the 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, expressly provided for herein or as in the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 7.02 and 9.02other Loan Documents) or in the absence of its own gross negligence or willful misconduct as determined by a court misconduct. Each of competent jurisdiction by final the Administrative Agent and nonappealable judgment. The Administrative the Sustainability Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such agent by the Borrower or a Lender, and each of the Administrative Agent by and the Company, another Borrower, a Lender or an Issuing Lender. The Administrative Sustainability Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Defaulttherein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinherein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or a Sustainability Agent, as applicable. The Each of the Administrative Agent and the Sustainability 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, signed or sent or otherwise authenticated by the proper Person. The Each of the Administrative Agent and the Sustainability Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making Each of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless and the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Sustainability Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one (1) 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 by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Banks and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (Borrower not to be unreasonably withheld or delayed(or, if an Event of Default has occurred and is continuing in consultation with the Borrower), to appoint a successor, which is not a natural person, a Defaulting Lender or a Disqualified Lender. 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’s resignation shall nonetheless become effective (except that in the case of any collateral security held by the Administrative Agent may (but shall not be obligated to), on behalf of the Lenders and or the Issuing Lenders, appoint, with the consent Banks under any of the Company (not Loan Documents, the retiring or removed Administrative Agent shall continue to be unreasonably withheld or delayed), hold such collateral security until such time as a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (xis appointed) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under (2) the other Loan Documents Required Lenders shall perform the duties of the Administrative Agent (and (b) except for any indemnity all payments or other amounts then owed to the retiring Administrative Agent, all payments, and communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly directly) until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent hereunderagent as provided for above in this paragraph. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents(if not already discharged therefrom as provided above in this paragraph). The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the its benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges agrees that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender Agreement and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Sustainability Agent or any other Lender or any other their Related Parties 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 and other Loan Documents to which it is a party. Except as otherwise provided in Section 9.02(b) with respect to this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The the Administrative Agent shall not be responsible or have any liability formay, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality prior consent of the foregoingRequired Lenders (but not otherwise), consent to any modification, supplement or waiver under any of the Loan Documents, provided that, without the prior consent of each Lender and each Issuing Bank, the Administrative Agent shall not (xexcept as provided herein or in the Security Documents) be obligated 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 ascertainadditional obligations being secured by all or substantially all of such collateral security, monitor or inquire as alter the relative priorities of the obligations entitled to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability the benefits of the Liens created under the Security Documents with respect to all or arising out substantially all of any assignment or participation of Loansthe Collateral, or disclosure of confidential informationexcept 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 Disqualified Institution. It party) any Lien covering property that is agreed that the Syndication Agentsubject of either a disposition of property not prohibited hereunder (including, without limitation, any property subject to a participation or repurchase transactions) or a disposition to which the Co-Documentation Agents Required Lenders have consented, (2) release from any Guarantee and Security Agreement any “Subsidiary Guarantor” (and any property of such Subsidiary Guarantor) in accordance with Section 9.02(c) and (3) spread Liens to any Designated Indebtedness or Hedging Agreement Obligations (as such terms are defined in the Joint Lead Arrangers shall, Guarantee and Security Agreement) in their capacities as such, have no duties or responsibilities under this accordance with the Guarantee and Security Agreement.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Blackstone Secured Lending Fund)
The Administrative Agent. Each of the Lenders Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, and the Issuing Lenders Bank hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect In addition, to the consent rights extent required under the laws of any jurisdiction other than the United States of America, each of the Company relating Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, and the Issuing Bank hereby grants to a successor agent as set forth below, the Administrative Agent any required powers of attorney to execute any Collateral Document governed by the laws of such jurisdiction on such Lender’s or Issuing Bank’s behalf. The provisions of this Article are solely for the benefit of the Administrative Agent, Agent and the LendersLenders (including the Issuing Bank), and neither the Issuing Lenders and the Borrowers Borrower nor any other Loan Party shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” as used 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 Lawlaw. Instead Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The Person 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 Agent, and 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 such bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lendershereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), provided that and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall be necessary, necessary under the circumstances as provided in Sections 7.02 and Section 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 final and nonappealable judgmentjurisdiction. 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of in any DefaultLoan Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other 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 IV or elsewhere hereinin 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, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Subject to the appointment and acceptance of a successor Administrative Agent shall not be responsible for as provided in this paragraph, the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Bank and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the consent of the Company (not to be unreasonably withheld or delayed)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 (but shall not be obligated to)may, on behalf of the Lenders and the Issuing LendersBank, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documentshereunder. The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all Each Lender acknowledges and agrees that the rights, powers, privileges extensions of credit made hereunder are commercial loans and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit and not investments in substitution for the Letters of Credit, if any, outstanding at the time of such succession a business enterprise or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Creditsecurities. Each Lender and each Issuing Lender acknowledges 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 any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this AgreementAgreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender and each Issuing Lender also acknowledges that it willshall, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunderthereunder and in deciding whether or to the extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder. None of the Lenders, if any, identified in this Agreement as a syndication agent, Co-Documentation Agent or similar title shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as syndication agent, a Co-Documentation Agent or similar title, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall not have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement. In its capacity, the Administrative Agent is a “representative” of the Secured Parties within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Administrative Agent to enter into each of the 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 responsible 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 have appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Secured Parties. The Lenders hereby authorize the Administrative Agent, at its option and in its discretion, to (a) release or, as applicable, subordinate any liability forLien granted to or held by the Administrative Agent upon any Collateral (i) as described in Section 9.02(d); (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 and (b) subject to any more specific terms and conditions set forth in the Security Agreement, enter into non-disturbance or similar agreements in connection with the licensing of intellectual property permitted pursuant to the terms of this Agreement. 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 have any duty consented to ascertain, inquire into, monitor in writing by the Required Lenders or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality all of the foregoingLenders, as applicable, and upon at least five (5) Business Days’ prior written request by the Borrower to the Administrative Agent (or such shorter period as is acceptable to the Administrative Agent), the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for the benefit of the Secured Parties herein or pursuant hereto upon the Collateral that was sold or transferred; provided, however, that (i) the Administrative Agent 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 (xii) such release shall not in any manner discharge, 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, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the Collateral. Any execution and delivery by the Administrative Agent of documents in connection with any such release shall be obligated without recourse to ascertainor warranty by the Administrative Agent. In addition, monitor at the request of the Borrower, the Administrative Agent shall (and hereby is irrevocably authorized by the Lenders to) subordinate any Lien on the Collateral or inquire as enter into non-disturbance or similar agreements in each case to whether the extent provided in Section 9.15. In case of the pendency of any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability proceeding with respect to any Loan Party under any Federal, state or arising out foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any assignment Loan or participation any LC Disbursement shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of Loans, whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.otherwise:
Appears in 1 contract
The Administrative Agent. In order to expedite the transactions contemplated by this Agreement, the Person named in the heading of this Agreement is hereby appointed to act as Administrative Agent on behalf of the Lenders. Each of the Lenders and Issuing Lenders Lenders, each assignee of any Lender hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf of such Lender or assignee and to exercise such powers as are delegated to the Administrative Agent by the terms hereof and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers no Borrower shall not have rights as a third party beneficiary of any of such provisions. The Administrative Agent is hereby expressly authorized by the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders all payments of principal of and interest on the Loans and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. 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 Lawlaw. 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 Person serving as With respect to the Loans made by it hereunder, the Administrative Agent hereunder in its individual capacity and not as Administrative Agent shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent Agent, and the term “Lender” or “Lenders” shall, 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 the Administrative Agent and its Affiliates may accept deposits from, lend money 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 Borrowers Company or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 upon receipt of notice in writing 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 shall be necessary, under the circumstances as provided in Sections 7.02 and 9.02Section 11.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Lawlaw, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and the Administrative Agent shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 7.02 and 9.02Article VII or Section 11.02) or in the absence of its own gross negligence or willful wilful misconduct as determined by a court of competent jurisdiction by final and nonappealable in a final, non-appealable judgment. 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 a Borrower (in which case the CompanyAdministrative Agent shall give written notice to each other Lender), another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinin 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, Loan that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of CreditLoan. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowersany Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the consent of the Company (not to be unreasonably withheld or delayed)Company, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. 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 resignationresignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to), ) on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bankmeeting the qualifications set forth above; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender Lender. Whether or Disqualified Institution and (y) if not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date. If the Person serving as Administrative Agent shall notify is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Company and such Person remove such Person as Administrative Agent and, in consultation with the Company, appoint a successor. If no such successor shall have been so appointed by the Required Lenders that no qualifying Person has and shall have accepted such appointmentappointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such resignation removal shall nonetheless become effective in accordance with such notice and on the Removal Effective Date. With effect from the Resignation Date or the Removal Effective Date (aas applicable), (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative AgentAgent pursuant to any of the Loan Documents, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly directly, until such time time, if any, as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent hereunderas provided for above in this Section. Upon the acceptance of its a successor’s appointment as Administrative Agent hereunder by a successorhereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative Agent (other than as provided in Section 2.15(e2.17(g)(ii) and other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as pursuant to any of the resignation effective dateLoan Documents), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder and or under the other Loan DocumentsDocuments (if not already discharged therefrom as provided above in this Section). The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the retiring or removed Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 11.03 shall continue in effect for the benefit of such retiring or removed 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 (i) while it was acting as Administrative Agent and (ii) after such resignation or removal for as long as any of them continues to act in any such capacity hereunder or under the other Loan Documents, including including, without limitation, in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Each Lender hereby acknowledges that no Co-Syndication Agent, Joint Lead Arranger, Joint Bookrunner or Co-Documentation Agent shall not be responsible has any rights, duties or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutionshereunder other than in its capacity as a Lender. Without limiting the generality In case of the foregoingpendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to irrespective of whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out the principal of any assignment Loan shall then be due and payable as herein expressed or participation by declaration or otherwise and irrespective of Loanswhether the Administrative Agent shall have made any demand on any Borrower) shall be entitled and empowered, by intervention in such proceeding or disclosure otherwise to file and prove a claim for the whole amount of confidential informationthe principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent allowed in such judicial proceeding and to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same, and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any Disqualified Institution. It is agreed that amount due for the Syndication Agentreasonable compensation, expenses, disbursements and advances of the Co-Documentation Agents Administrative Agent and its agents and counsel, and any other amounts due the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities Administrative Agent under this AgreementSections 2.12 and 11.03.
Appears in 1 contract
Samples: Five Year Credit Agreement (Edwards Lifesciences Corp)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as 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 and or thereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights Each of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, Lenders and the Issuing Lenders Banks hereby irrevocably appoints the Collateral Agent as the collateral agent hereunder and under the Borrowers shall not 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 and authorizes the Collateral Agent to have all the rights and benefits hereunder and thereunder (or any other similar term) with reference 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 Administrative Collateral Agent is not intended to connote any fiduciary by the terms hereof or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead thereof, together with such term is used actions and powers as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting partiesare reasonably incidental thereto. 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requiresindicates, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of banking, trust or other business with any of the Borrowers Obligors (or any Subsidiary or other Affiliate thereof 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 of the Obligors or other Affiliate thereof for services in connection with this Agreement or otherwise without any duty having to account therefor for the same to the other Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and 9.02), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief LawLenders, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the 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, expressly provided for herein or as in the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 7.02 and 9.02other Loan Documents) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgmentmisconduct. 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Defaulttherein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinherein 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 electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one (1) 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 by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Banks and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (Borrower not to be unreasonably withheld or delayed(or, if an Event of Default has occurred and is continuing in consultation with the Borrower), to appoint a successor, which is not a natural person, a Defaulting Lender or a Disqualified Lender. 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’s resignation shall nonetheless become effective (except that in the case of any collateral security held by the Administrative Agent may (but shall not be obligated to), on behalf of the Lenders and or the Issuing Lenders, appoint, with the consent Banks under any of the Company (not Loan Documents, the retiring or removed Administrative Agent shall continue to be unreasonably withheld or delayed), hold such collateral security until such time as a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (xis appointed) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under (2) the other Loan Documents Required Lenders shall perform the duties of the Administrative Agent (and (b) except for any indemnity all payments or other amounts then owed to the retiring Administrative Agent, all payments, and communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly directly) until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent hereunderagent as provided for above in this paragraph. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents(if not already discharged therefrom as provided above in this paragraph). The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the its benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank Sumitomo Mitsui Banking Corporation as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Bank and a Swingline Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company acceptance of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender)successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing XxxxxxBank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents Documents, and (c) the successor Xxxxxxx Xxxxxx Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank the retiring Issuing Bank to effectively assume the obligations of Citibank the retiring Issuing Bank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges agrees that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender Agreement and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties 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 and other Loan Documents to which it is a party. Except as otherwise provided in Section 9.02(b) with respect to this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The the Administrative Agent shall not be responsible or have any liability formay, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality prior consent of the foregoingRequired Lenders (but not otherwise), consent to any modification, supplement or waiver under any of the Loan Documents, provided that, without the prior consent of each Lender and each Issuing Bank, the Administrative Agent shall not (xexcept as provided herein or in the Security Documents) be obligated 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 ascertainadditional obligations being secured by all or substantially all of such collateral security, monitor or inquire as alter the relative priorities of the obligations entitled to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability the benefits of the Liens created under the Security Documents with respect to all or arising out substantially all of any assignment or participation of Loansthe Collateral, or disclosure of confidential informationexcept 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 Disqualified Institution. It party) any Lien covering property that is agreed that the Syndication Agentsubject of either a disposition of property not prohibited 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) in accordance with Section 9.02(c) and (3) spread Liens to any Designated Indebtedness or Hedging Agreement Obligations (as such terms are defined in the Co-Documentation Agents Guarantee and Security Agreement) in accordance with the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Guarantee and Security Agreement.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Owl Rock Technology Income Corp.)
The Administrative Agent. Each of the Lenders Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, and each of the Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the The provisions of this Article are solely for the benefit of the Administrative Agent, Agent and the Lenders, Lenders (including the Swingline Lender and the Issuing Lenders Banks), and neither the Borrowers Company nor any other Borrower shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” as used 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 Lawlaw. Instead Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The Person 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 Agent, and 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 such bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of business with the Borrowers Company or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lendershereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), provided that and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall be necessary, necessary under the circumstances as provided in Sections 7.02 and Section 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 final and nonappealable judgmentjurisdiction. 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 CompanyCompany or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of in any DefaultLoan Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, document or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinin 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, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersCompany), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Subject to the appointment and acceptance of a successor Administrative Agent shall not be responsible for as provided in this paragraph, the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Banks and the Company. Upon any such resignation, the Required Lenders shall have the rightright to appoint a successor (such successor to be approved by the Company, with the consent of the Company (such approval not to be unreasonably withheld or delayed; provided, however, if an Event of Default shall exist at such time, no approval of the Company shall be required hereunder), 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 (but shall not be obligated to)may, on behalf of the Lenders and the Issuing LendersBanks, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documentshereunder. The fees payable by the Company any Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company such Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all Each Lender acknowledges and agrees that the rights, powers, privileges extensions of credit made hereunder are commercial loans and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit and not investments in substitution for the Letters of Credit, if any, outstanding at the time of such succession a business enterprise or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Creditsecurities. Each Lender and each Issuing Lender acknowledges 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 of the credit facilities evidenced by this Agreement or any other Lender or any of and their respective Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this AgreementAgreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender and each Issuing Lender also acknowledges that it willshall, independently and without reliance upon the Administrative Agent Agent, any arranger of the credit facilities evidenced by this Agreement or any amendment thereof or any other Lender or any other and their respective Related Parties 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 Company and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunderthereunder and in deciding whether or to the extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder. None of the Lenders, if any, identified in this Agreement as a 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 respective capacities as Co-Syndication Agent or Co-Documentation Agent as it makes with respect to the Administrative Agent in the preceding paragraph. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality exclusive right on behalf of the foregoing, Lenders to enforce the Administrative Agent shall not (x) be obligated payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out the terms of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Newmarket Corp)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, the entity named as Administrative Agent, Agent in the heading of this Agreement and its successors to act on its behalf serve as the Administrative Agent hereunder under this Agreement and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except 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 Person and its Affiliates may accept deposits from, lend money 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 Company or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. Neither the Administrative Agent nor either Sustainability Coordinator shall have any duties or obligations except those expressly set forth in the Loan Documents with respect to the consent rights of Administrative Agent or the Company relating to a successor agent Sustainability Coordinators, as set forth belowapplicable, the provisions of this Article are solely for the benefit of and the Administrative Agent, the Lenders, ’s and the Issuing Lenders Sustainability Coordinators’ respective duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (a) neither the Administrative Agent nor either Sustainability Coordinator shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and the Borrowers shall not have rights as a third party beneficiary of any of such provisions. It is continuing (and 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 law, and that such term is used as a matter of market custom, custom and is intended to create or reflect only an administrative relationship between contracting parties. 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 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, 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 Borrowers or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent (a) 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 powerspower, 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 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 Sections 7.02 and 9.02the Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counselopinion, may could expose the Administrative Agent to liability or that is be contrary to any Loan Document or applicable Lawlaw, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law applicable bankruptcy, insolvency or other similar law now or hereinafter in effect; or any other similar relief shall be granted under any applicable federal, state, local or foreign law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawapplicable bankruptcy, insolvency or other similar law now or hereinafter in effect; or any other similar relief shall be granted under any applicable federal, state, local or foreign law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and the Administrative Agent shall not be liable for the failure to disclose, any information relating to the Company Company, any Subsidiary or any of its Subsidiaries other Affiliate thereof that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall to be necessary, under the circumstances as provided in Sections 7.02 and 9.02the Loan Documents) or in the absence of its own gross negligence or willful misconduct as (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by the Company, another Borrowerany Lender, a Lender any Issuing Bank or an Issuing Lender. The any Sustainability Coordinator, and neither the Administrative Agent nor either Sustainability Coordinator shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein in any Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinin any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. The Each of the Administrative Agent and each Sustainability Coordinator shall be entitled to rely uponrely, and shall not incur any liability for relying uponrelying, 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, sent or otherwise authenticated by the proper PersonPerson (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 Each of the Administrative Agent and each Sustainability Coordinator 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 have been be made by the proper PersonPerson (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 thereonsuch statement prior to receipt of written confirmation thereof. In determining compliance with any condition hereunder to the making of a Loan, Loan or the issuance, extensionamendment, renewal or increase extension of a any Letter of Credit, Credit that by its terms must be fulfilled to the satisfaction of a Lender or any an Issuing LenderBank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender Bank, as applicable, unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender Bank, as applicable, prior to the making of such Loan or the issuance, extension, renewal or increase of such event as to such Letter of Credit. The Administrative Agent and each Sustainability Coordinator may consult with legal counsel (who may be counsel for the BorrowersCompany), independent accountants and other experts selected by itit with reasonable care, 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 and 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 of its their duties and exercise its their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities facility provided for herein as well as activities as the Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any of its sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable nonappealable judgment that the Administrative Agent acted with bad faith, gross negligence or willful misconduct in the selection of such sub-agents. The Subject to the terms of 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 Issuing Lenders Banks, the Sustainability Coordinators and the Company. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, with subject to the consent of the Company (not to be unreasonably withheld withheld, conditioned or delayed), ) 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 resignationintent to resign, then the retiring Administrative Agent may (but shall not be obligated to)may, on behalf of the Lenders and the Issuing LendersBanks, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent Agent, which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor . If the Person serving as the Administrative Agent be is a Defaulting Lender or Disqualified Institution pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Company and (y) if such Person remove such Person as the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointmentand, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed subject to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld withheld, conditioned or delayed), ) appoint a successor Administrative Agent hereundersuccessor. Upon the acceptance of its appointment as the Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between by the Company and such successor. After Notwithstanding the foregoing, in the event no successor Administrative Agent’s 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, the Sustainability Coordinators and the Company, 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, 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 retiring Administrative Agent for the account of any Person other than the retiring 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 retiring Administrative Agent shall also directly be given or made to each Lender, each Issuing Bank and each Sustainability Coordinator. Following the effectiveness of the Administrative Agent’s resignation or removal from its capacity as such, the provisions of this Article and Section 9.03 10.03, 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 or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Bank expressly acknowledges that none of the Administrative Agent, the Arrangers, nor any Sustainability Coordinator has made any representation or warranty to it, and that no act by the Administrative Agent, the Arrangers or any Sustainability Coordinator hereafter taken, including any consent to, and acceptance of any assignment or review of the affairs of the Company or any Borrowing Subsidiary or any Affiliate thereof, shall be deemed to constitute any representation or warranty by the Administrative Agent, either Sustainability Coordinator or any Arranger to any Lender or Issuing Bank as to any matter, including whether the Administrative Agent, either Sustainability Coordinators or any Arranger has disclosed material information in their (or their Related Parties’) possession. Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent Agent, the Arrangers, any Sustainability Coordinator or any other Lender or Issuing Bank, or any of their 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 of, appraisal of, and investigation into, the business, prospects, operations, property, financial and other condition and creditworthiness of the Company and any Borrowing Subsidiary, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this AgreementAgreement and to extend credit to the Company or such Borrowing Subsidiary hereunder. Each Lender and each Issuing Lender Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent Agent, the Arrangers, the Sustainability Coordinators or any other Lender or Issuing Bank, or any other their 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 credit analysis, appraisals 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, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Company or any Borrowing Subsidiary. The Administrative Agent shall not be responsible or have any liability forEach Lender, by delivering its signature page to this Agreement, or delivering its signature page to an Assignment and Assumption or any other document pursuant to which it shall become a Lender hereunder, shall be deemed to have any duty acknowledged receipt of, and consented to ascertainand approved, inquire intoeach Loan Document and each other document required to be delivered to, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoingbe approved by or satisfactory to, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether the Lenders on the Effective Date. In case of the pendency of any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability proceeding with respect to the Company or arising out any Borrowing Subsidiary under any United States (Federal or state) or foreign bankruptcy, insolvency, receivership, winding-up or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any assignment Loan shall then be due and payable as herein expressed or participation by declaration or otherwise and irrespective of Loans, whether the Administrative Agent shall have made any demand on the Company or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents Borrowing Subsidiary) shall be entitled and the Joint Lead Arrangers shall, empowered (but not obligated) by intervention in their capacities as such, have no duties such proceeding or responsibilities under this Agreement.otherwise:
Appears in 1 contract
Samples: Credit Agreement (Trimble Inc.)
The Administrative Agent. Each of the Lenders and Issuing Lenders hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the The provisions of this Article are solely for the benefit of the Administrative Agent, Agent and the Lenders, and neither the Issuing Lenders and the Borrowers Borrower nor any other Loan Party shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” as used 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 Lawlaw. Instead Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The Person 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 Agent, and 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 such bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lendershereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), provided that and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Parent or any of its Subsidiaries that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall be necessary, necessary under the circumstances as provided in Sections 7.02 and Section 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 final and nonappealable judgmentjurisdiction. 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of in any DefaultLoan Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinin 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, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Subject to the appointment and acceptance of a successor Administrative Agent shall not be responsible for as provided in this paragraph, the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, right (with the consent of the Company Borrower (such consent not to be unreasonably withheld or delayed); provided, that no consent of the Borrower shall be required if 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 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (but shall not be obligated to)may, on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documentshereunder. The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender acknowledges and each Issuing agrees that the extensions of credit made hereunder are commercial loans and not investments in a business enterprise or securities. Each Lender acknowledges 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 any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this AgreementAgreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender and each Issuing Lender also acknowledges that it willshall, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunderthereunder 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. 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 not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality exclusive right on behalf of the foregoing, Lenders to enforce the Administrative Agent shall not (x) be obligated payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out the terms of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.
Appears in 1 contract
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, DBNY (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers any Loan Party or any Subsidiary subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and without acknowledge that the Administrative Agent shall not be under any duty obligation to account therefor provide such information to the Lendersthem. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law; it being understood that such term is used merely as a matter of market custom, and is continuingintended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powerspower, except discretionary rights and powers that are expressly contemplated hereby or by the other Loan Documents that and which the Administrative Agent is required to exercise in writing as directed in writing by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawlaws, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Lead Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the relevant circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct misconduct, as determined by the final judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyBorrowers or any Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenantscovenant, agreements agreement or other terms term or conditions condition set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere hereinin any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative AgentAgent or (vii) any property, book or record of any Loan Party or any Affiliate thereof. The Administrative Agent shall be entitled to rely upon, and shall not incur If 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making Lender acquires knowledge of a LoanDefault or Event of Default, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, it shall promptly notify the Administrative Agent may presume that such condition is satisfactory to such and the other Lenders thereof in writing. Each Lender or such Issuing Lender unless agrees that, except with the written consent of the Administrative Agent shall have received notice to the contrary from such Lender Agent, it will not take any enforcement action hereunder or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by Document, accelerate the Obligations under any Loan Document, or through exercise any one right that it might otherwise have under applicable law or more sub-agents appointed by otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section 363 of the Administrative AgentBankruptcy Code or other similar Dispositions of Collateral. The Administrative Agent and any such sub-agent Notwithstanding the foregoing, however, a Lender may perform any and all of its duties and exercise take action to preserve or enforce its rights and powers against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations held by or through their respective Related Partiessuch Lender, including the filing of a proof of claim in a case under the Bankruptcy Code. The exculpatory provisions of this Article shall apply to any such sub-agent and Notwithstanding anything to the Related Parties contrary contained herein or in any of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions Borrowers, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of this Article the Collateral or to enforce the Loan Guaranty; it being understood and Section 9.03 shall continue in effect for agreed that all powers, rights and remedies hereunder may be exercised solely by, the benefit of such retiring Administrative Agent, its sub-agents and their respective Related on behalf of the Secured Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent accordance with the terms hereof and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges rights and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or remedies under the other Loan Documents may be exercised solely by, the Administrative Agent, and (cii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the successor Xxxxxxx Xxxxxx Administrative Agent, as agent for and representative of the Secured Parties, shall issue letters of credit in substitution be entitled, for the Letters purpose of Creditbidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, if any, outstanding to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender Disposition and each Issuing Lender acknowledges that it has, independently and without reliance upon (B) the Administrative Agent or any other Lender may be the purchaser or licensor of any or all of their Related Parties and based on such documents and information Collateral at any such Disposition. No holder of any Secured Hedging Obligation, Banking Services Obligation or Ancillary Obligation in its respective capacity as it has deemed appropriate, made its own credit analysis and decision to enter into such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not Lenders hereby irrevocably authorizes (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is and by entering into a Disqualified Institution or (y) have any liability Hedge Agreement with respect to or arising out any Secured Hedging Obligation, by entering into documentation in connection with any Banking Services Obligation and/or by entering into any Ancillary Documents in connection with any Ancillary Obligation, each of any assignment or participation of Loans, or disclosure of confidential information, the other Secured Parties hereby authorizes and shall be deemed to any Disqualified Institution. It is agreed that authorize) the Syndication Administrative Agent, on behalf of all Secured Parties to take any of the Co-Documentation Agents and following actions upon the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.instruction of the Required Lenders:
Appears in 1 contract
The Administrative Agent. Each of the Lenders and the Issuing Lenders Bank, each on behalf of itself and any of its Affiliates that is a Secured Party, hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofhereof, together with such actions and powers as are reasonably incidental thereto. Except with respect In addition, to the consent rights extent required under the laws of any jurisdiction other than the U.S., each of the Company relating Lenders and the Issuing Bank hereby grants to a successor agent as set forth belowthe Administrative Agent any required powers of attorney to execute any Collateral Document governed by the laws of such jurisdiction on such Lender’s or Issuing Bank’s behalf. Except for the final paragraph of this Article VIII, the provisions of this Article are solely for the benefit of the Administrative Agent, the LendersCredit Parties, and the Issuing Lenders and the Borrowers Loan Parties shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” as used 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 Lawlaw. Instead Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The 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 Agent, and 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 such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lendershereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), provided that and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company any Loan Party or any of its Subsidiaries that is communicated to or obtained by the 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, or as the Administrative Agent shall believe in good faith shall be necessary, necessary under the circumstances as provided in Sections 7.02 and Section 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 final and nonappealable judgmentjurisdiction. 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder under any Loan Document or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of in any DefaultLoan Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, Agreement or any other 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 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Subject to the appointment and acceptance of a successor Administrative Agent shall not be responsible for as provided in this paragraph, the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Bank and the CompanyBorrower thirty (30) days in advance. Upon any such resignation, the Required Lenders shall have the right, in consultation with the consent Borrower, to appoint a successor which shall be a commercial bank with an office in New York, New York, or an Affiliate of any such commercial bank, which successor, so long as no Event of Default shall have occurred and be continuing, shall be subject to approval by the Company Borrower (which approval shall not to be unreasonably withheld or delayed), to appoint a successor. 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 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (but shall not be obligated to)may, on behalf of the Lenders and the Issuing LendersBank, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a commercial bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such commercial bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documentshereunder. The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After Notwithstanding the foregoing, in the event no successor Administrative Agent’s 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 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 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 duty 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 the Issuing Bank. Following the effectiveness of the Administrative Agent’s resignation from its capacity as such, the provisions of this Article Article, Section 2.17(d) and Section 9.03 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 (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken the matters referred to in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), proviso under clause (a) such successor shall succeed to above. Each Lender acknowledges and become vested with all agrees that the extensions of the rights, powers, privileges credit made hereunder are commercial loans and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit and not investments in substitution for the Letters of Credit, if any, outstanding at the time of such succession a business enterprise or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Creditsecurities. Each Lender and each Issuing Lender acknowledges 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 of this credit facility or any amendment thereto or any other Lender or any of and their respective Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this AgreementAgreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender and each Issuing Lender also acknowledges that it willshall, independently and without reliance upon the Administrative Agent Agent, any arranger of this credit facility or any amendment thereto or any other Lender or any other and their respective Related Parties 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, Agreement or any other Loan Document or Documents, any related agreement or any document furnished hereunder or thereunderthereunder 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. The Administrative Anything herein to the contrary notwithstanding, no Lead Arranger or Syndication Agent listed on the cover page hereof shall not be responsible or have any liability forpowers, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.Credit 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. 115
Appears in 1 contract
Samples: Credit Agreement (Virtusa Corp)
The Administrative Agent. Each of the Lenders and Issuing Lenders hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf the entity named as the Administrative Agent hereunder in the heading of this Agreement and its successors to serve in such capacity under the other Loan Documents Documents, and authorizes the Administrative Agent to execute, deliver and administer the Loan Documents and to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except 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 the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent in its individual capacity), and such Person and its Affiliates may accept deposits from, lend money 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 respect the Borrower or any Subsidiary or Affiliate thereof or any other Person that may do business with or own Equity Interests in the Borrower as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Lenders. The Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers Agent shall not have rights any duties or obligations except those expressly set forth in the Loan Documents. In performing its functions and duties under this Agreement, the Administrative Agent shall act solely as agent of the Lenders and shall not assume, or be deemed to have assumed, any relationship of agency or trust with or for the Borrower. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a third party beneficiary of any of such provisions. It Default has occurred and is continuing (and 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 law, and that such term is used as a matter of market custom, custom and is intended to create or reflect only an administrative relationship between contracting parties. 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 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, 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 Borrowers or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent (a) 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 powerspower, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent exercise (including in connection with any amendment contemplated by Section 2.13(b) or any transaction contemplated by Section 6.03) or that the Administrative Agent is required to exercise as directed in writing 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 Sections 7.02 and 9.02the Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counselopinion, may expose the Administrative Agent to liability or that is could be contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that law or may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawexpose it to liability, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and the Administrative Agent shall not be liable for the failure to disclose, any information relating to the Company Borrower, or any Subsidiary or Affiliate of its Subsidiaries the Borrower, that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall to be necessary, under the circumstances as provided in Sections 7.02 and 9.02) the Loan Documents), which consent or request, as applicable, shall be binding upon all Lenders, or in the absence of its own gross negligence negligence, bad faith or willful misconduct as of the Administrative Agent or its Related Parties (such absence to be presumed unless otherwise determined by byin a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default” and stating the nature of the Default) is given to the Administrative Agent by the CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein in any Loan Document or the occurrence of any Default, (iv) the due execution, legality, sufficiency, validity, enforceability, effectiveness effectiveness, genuineness or genuineness value of this Agreement, any other Loan Document or any other agreement, instrument or document, document or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinin any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. The Administrative Agent shall be entitled to rely uponrely, and shall not incur any liability for relying uponrelying, 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, sent or otherwise authenticated by the proper PersonPerson (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 have been be made by the proper PersonPerson (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticatormaker thereof), and shall not incur may act upon any liability for relying thereonsuch statement prior to receipt of written confirmation thereof. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, Loan that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of CreditLoan. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), 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 and 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 of its their duties and exercise its their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities facility provided for herein as well as activities as the Administrative Agent. The NoThe Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable nonappealable judgment that the Administrative Agent or any of its Related Parties acted with gross negligence negligence, bad faith or willful misconduct in misconduct. 56 Subject to the selection terms of such sub-agents. The this paragraph and Section 9.18, 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 Borrower and the Lenders, the Issuing Lenders and the Company. Upon receipt of any such resignationnotice of resignation by the Administrative Agent, the Required Lenders shall have the right, with subject to Section 9.18 and the consent of the Company Borrower (other than during the existence of an Event of Default under clause (a), (b), (h) or (i) of Article VII), which consent of the Borrower shall not to be unreasonably withheld withheld, delayed or delayed)conditioned, to appoint a successor, which shall be a Farm Credit Lender or a bank (or an Affiliate of a Farm Credit Lender or a bank). 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 resignationintent to resign, then the retiring Administrative Agent may (but shall not be obligated to)may, on behalf of the Lenders and the Issuing Lenders, appointappoint a successor, with subject to Section 9.18 and the consent of the Company Borrower (not to be unreasonably withheld or delayedother than during the existence of an Event of Default under clause (a), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b), (h) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent(i) of Article VII), all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the which consent of the Company (Borrower shall not to be unreasonably withheld withheld, delayed or delayed), a successor Administrative Agent hereunderconditioned. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between by the Company Borrower and such successor. After Notwithstanding the foregoing, in the event no successor Administrative Agent’s 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 other Agents, the Lenders 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, without any other further act or deed on the part of such retiring Administrative Agent or any other Person, 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. Following the effectiveness of the Administrative Agent’s resignation from its capacity as such, the provisions of this Article and Section 9.03 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 suchthe 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 (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent Agent, any Arranger or any other Lender Lender, or any of their 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 Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent Agent, any Arranger or any other Lender Lender, or any other their 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 57 own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability forEach 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 any duty acknowledged receipt of, and consented to ascertainand approved, inquire intoeach Loan Document and each other document required to be delivered to, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoingbe approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date. Notwithstanding anything herein to the contrary, neither any Arranger nor any Person named on the cover page of this Agreement as a Syndication Agent or a Documentation Agent shall have any duties, responsibilities or obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as the Administrative Agent or a Lender), but all such Persons shall have the benefit of the indemnities provided for hereunder. The provisions of this Article (other than provisions of this Article providing the Borrower with a consent right, all of which shall also be for the benefit of the Borrower) are solely for the benefit of the Administrative Agent and the Lenders, and the Borrower shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out rights as a third party beneficiary of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreementsuch provisions.
Appears in 1 contract
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, Barclays (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 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 the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers Loan Parties or any Subsidiary subsidiary of a Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and without acknowledge that the Administrative Agent shall not be under any duty obligation to account therefor provide such information to the Lendersthem. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuingcontinuing and without limiting the generality of the foregoing, the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law and instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise in writing as directed in writing by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawlaws, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company any Loan Party or any of its Subsidiaries that is communicated to or obtained by the 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 Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct as determined by the final judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyBorrower or any Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of Liens on the Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere hereinin any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative AgentAgent or (vii) the properties, books or records of any Loan Party or any Affiliate thereof. The Administrative Agent shall be entitled to rely upon, and shall not incur If 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making Lender acquires knowledge of a LoanDefault or Event of Default, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, it shall promptly notify the Administrative Agent may presume that such condition is satisfactory to such and the other Lenders thereof in writing. Each Lender or such Issuing Lender unless agrees that, except with the written consent of the Administrative Agent shall have received notice to the contrary from such Lender Agent, it will not take any enforcement action hereunder or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by Document, accelerate the Obligations under any Loan Document, or through exercise any one right that it might otherwise have under applicable law or more sub-agents appointed by otherwise to credit bid at foreclosure sales, UCC sales, any sale under Section 363 of the Administrative AgentBankruptcy Code or other similar Dispositions of Collateral. The Administrative Agent and any such sub-agent Notwithstanding the foregoing, however, a Lender may perform any and all of its duties and exercise take action to preserve or enforce its rights and powers against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations held by or through their respective Related Partiessuch Lender, including the filing of proofs of claim in a case under the Bankruptcy Code. The exculpatory provisions of this Article shall apply to any such sub-agent and Notwithstanding anything to the Related Parties contrary contained herein or in any of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions Loan Parties, the Administrative Agent and each Secured Party agrees that (i) no Secured Party shall have any right individually to realize upon any of this Article the Collateral or to enforce the Loan Guaranty, it being understood and Section 9.03 shall continue in effect for agreed that all powers, rights and remedies hereunder may be exercised solely by the benefit of such retiring Administrative Agent, its sub-agents and their respective Related on behalf of the Secured Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent accordance with the terms hereof and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges rights and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or remedies under the other Loan Documents may be exercised solely by the Administrative Agent, and (cii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the successor Xxxxxxx Xxxxxx Administrative Agent, as agent for and representative of the Secured Parties, shall issue letters of credit in substitution be entitled, for the Letters purpose of Creditbidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such Disposition, if any, outstanding to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender Disposition and each Issuing Lender acknowledges that it has, independently and without reliance upon (B) the Administrative Agent or any other Lender may be the purchaser or licensor of any or all of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into Collateral at any such Disposition. No holder of Secured Hedging Obligations or Banking Services Obligations shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Guarantor under this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not Lenders hereby irrevocably authorizes (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is and by entering into a Disqualified Institution or (y) have any liability Hedge Agreement with respect to or arising out Secured Hedging Obligations and/or by entering into documentation in connection with Banking Services Obligations, each of any assignment or participation of Loans, or disclosure of confidential information, the other Secured Parties hereby authorizes and shall be deemed to any Disqualified Institution. It is agreed that authorize) the Syndication Administrative Agent, on behalf of all Secured Parties to take any of the Co-Documentation Agents and following actions upon the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.instruction of the Required Lenders:
Appears in 1 contract
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, the entity named as Administrative Agent, Agent in the heading of this Agreement and its successors to act on its behalf serve as the Administrative Agent hereunder administrative agent and collateral agent 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect In addition, to the consent rights extent required under the laws of any jurisdiction other than the United States of America, each of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, Lenders and the Issuing Lenders and Banks hereby grants to the Borrowers shall not have rights as a third party beneficiary Administrative Agent any required powers of attorney to execute any Security Document governed by the laws of such provisionsjurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Documents (or any other similar term) Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable Lawlaw. Instead Instead, such term is used as a matter of market custom, custom and is intended to create or reflect only an administrative relationship between contracting parties. Without limiting the generality of the foregoing, the Lenders and the Issuing Banks hereby expressly authorize the Administrative Agent to execute any and all documents (including releases and intercreditor agreements) with respect to the Collateral (including any amendment, supplement, modification or joinder with respect thereto) and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Collateral Documents and acknowledge and agree that any such action by the Administrative Agent shall bind the Lenders. 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 Agent, and 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 such Person and its Affiliates may accept deposits from, lend money 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 Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent hereunder and without any duty to account therefor to the LendersLenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in 157 nature. Without limiting the generality of the foregoing, (a) the Administrative Agent (a) 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 powerspower, 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 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 Sections 7.02 and 9.02the Loan Documents), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counselopinion, may could expose the Administrative Agent to liability or that is be contrary to this Agreement or any other Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawlaw, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower, any Subsidiary or any other Affiliate of its Subsidiaries any of the foregoing that is communicated to or obtained by the 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, or as the Administrative Agent shall believe in good faith shall to be necessary, under the circumstances as provided in Sections 7.02 and 9.02the Loan Documents) or in the absence of its own gross negligence or willful misconduct as (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by the Company, another Borrower, a Lender or an Issuing Lender. The 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein in this Agreement or therein any other Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement, Agreement or any other Loan Document or any other agreement, instrument or document, document or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinin this Agreement or any other Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with satisfaction of any condition hereunder that expressly refers to the making of a Loan, matters described therein being acceptable or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and Notwithstanding anything herein to the Related Parties of contrary, the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be liable for, or be responsible for any loss, cost or expense suffered by the negligence Borrower or misconduct of any sub-agents except to the extent that Lender as a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at result of, any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent determination of the Company (not to be unreasonably withheld Revolving Exposure or delayed), 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 (but shall not be obligated to), on behalf component amounts thereof or of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunderWeighted Average Yield. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement hereof relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x(x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Chemours Co)
The Administrative Agent. Each As of the Amendment No. 3 Closing Date, the Lenders and Issuing Lenders hereby have irrevocably appoints Citibank, appointed JPMCB (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes hereby authorize 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers any Loan Party or any Subsidiary subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and without acknowledge that the Administrative Agent shall not be under any duty obligation to account therefor provide such information to the Lendersthem. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred or Event of Default exists and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is continuingintended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powerspower, except discretionary rights and powers that are expressly contemplated hereby or by the other Loan Documents that and which the Administrative Agent is required to exercise in writing as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance Requirements of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings or the Company Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Parties 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 is necessary, or as the Administrative Agent shall believe believes in good faith shall be necessary, under the relevant circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct as determined by the final judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyBorrower or any Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenantscovenant, agreements agreement or other terms term or conditions condition set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere hereinin 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 uponor (vii) any property, and shall not incur book or record of 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender Loan Party or any Issuing Lender, Affiliate thereof. Each Lender hereby agrees that (x) if the Administrative Agent may presume notifies such Lender that the Administrative Agent has determined in its sole discretion that any funds received by such condition is satisfactory Lender from the Administrative Agent or any of its Affiliates (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) were erroneously transmitted to such Lender (whether or not known to such Issuing Lender), and demands the return of such Payment (or a portion thereof), such Lender unless shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent shall have the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received notice by such Lender to the contrary from date such Lender or such Issuing Lender prior amount is repaid to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for at the Borrowers), independent accountants greater of the NYFRB Rate and other experts selected a rate determined by it, and shall not be liable for any action taken or not taken by it the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (y) to the advice extent permitted by applicable law, such Lender shall not assert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any such counseldemand, accountants claim or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed counterclaim by the Administrative AgentAgent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties A notice of the Administrative Agent and to any such sub-agentLender under this paragraph shall be conclusive, 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 Agentabsent manifest error. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent Each Lender hereby further agrees that if it receives a court of competent jurisdiction determines in a final and non appealable judgment that Payment from the Administrative Agent acted or any of its Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Administrative Agent (or any of its Affiliates) with gross negligence respect to such Payment (a “Payment Notice”) or willful misconduct (y) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly notify the selection Administrative Agent of such sub-agents. The occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate amount of any such bank; provided Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. The Borrower hereby agrees that (x) in no the event shall an erroneous Payment (or portion thereof) are not recovered from any Lender that has received such successor Payment (or portion thereof) for any reason, the Administrative Agent shall be a Defaulting subrogated to all the rights of such Lender or Disqualified Institution with respect to such amount and (y) if an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and Borrower or any other Loan Party. Each party’s obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent three preceding paragraphs shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of survive the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions or replacement of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunderDocument. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement hereof relating to Disqualified InstitutionsInstitutions by any other Lender. Without limiting the generality of the foregoing, the Administrative Agent shall not (x(x) be obligated to ascertain, monitor or inquire as to whether any other Lender or Participant participant or prospective Lender or Participant is a Disqualified Institution Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified InstitutionDisqualified Institution by any other Lender. It Each Lender agrees that, except with the written consent of the Administrative Agent, it will not take any enforcement action hereunder or under any other Loan Document, accelerate the Obligations under any Loan Document, or exercise any right that it might otherwise have under applicable Requirements of Law or otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section 363 of the Bankruptcy Code or any other similar Disposition of Collateral, whether under other Debtor Relief Laws or otherwise. Notwithstanding the foregoing, a Lender may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations held by such Lender, including the filing of a proof of claim in a case under the Bankruptcy Code. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Syndication Administrative Agent, on behalf of the Co-Documentation Agents Secured Parties in accordance with the terms hereof and all powers, rights and remedies under the Joint Lead Arrangers shallother Loan Documents may be exercised solely by the Administrative Agent, and (ii) in their capacities the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent, as suchagent for and representative of the Secured Parties, 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 sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have no duties any rights in connection with the management or responsibilities release of any Collateral or of the obligations of any Loan Party under this Agreement.. Each of the Lenders hereby irrevocably authorizes (and by entering into a Hedge Agreement with respect to any Secured Hedging Obligation and/or by entering into documentation in connection with any Banking Services Obligation, each of the other Secured Parties hereby authorizes and shall be deemed to authorize) the Administrative Agent, on behalf of all Secured Parties to take any of the following actions upon the instruction of the Required Lenders:
Appears in 1 contract
Samples: Term Loan Agreement (Daseke, Inc.)
The Administrative Agent. Each of the Lenders and Issuing Lenders Lender Parties hereby irrevocably appoints Citibank, the entity named as Administrative Agent, Agent in the heading of this Agreement to act on its behalf serve as the Administrative Agent hereunder administrative agent and collateral agent under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except Without limiting the generality of the foregoing, the Administrative Agent is hereby expressly authorized by the Lenders to execute any and all Loan Documents (including the Guarantee and Collateral Agreement) and other documents with respect to the consent Collateral and the rights of the Company relating to a successor agent Secured Parties with respect thereto, as contemplated by this Agreement, and each Lender hereby acknowledges the provisions set forth belowin the Guarantee and Collateral Agreement and agrees to be bound by such provisions with the same force and effect, and to the provisions same extent, as if such Lender were a party to the Guarantee and Collateral Agreement. In addition, to the extent required under the laws of this Article are solely for any jurisdiction other than the benefit United States, each of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 Lender Parties hereby grants to the Administrative Agent is not intended any required powers of attorney to connote execute any fiduciary or other implied (or express) obligations arising under agency doctrine Security Document governed by the laws 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 partiesjurisdiction on such Lender Party’s behalf. 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 Agent, and 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 such Person and its Affiliates may accept deposits from, lend money 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 Borrowers Parent, EnergySolutions, any of their respective Subsidiaries or any Subsidiary or other Affiliate thereof of any of the foregoing as if it such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (a) the Administrative Agent (a) 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 powerspower, 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 by the Required Majority Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and 9.02the Loan Documents), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counselopinion, may could expose the Administrative Agent to liability or that is 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 Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawlaw, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Parent, EnergySolutions, any of their respective Subsidiaries or any other Affiliate of its Subsidiaries any of the foregoing that is communicated to or obtained by the 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 Majority Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall to be necessary, under the circumstances as provided in Sections 7.02 and 9.02Section 10.10) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgmentmisconduct. 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 CompanyParent, another BorrowerEnergySolutions, a Lender or an Issuing Lender. The 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein in any Loan Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV III or elsewhere hereinin 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 uponrely, and shall not incur any liability for relying uponrelying, 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, sent or otherwise authenticated by the proper PersonPerson (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 have been be made by the proper PersonPerson (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. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender statement prior to the making receipt of such Loan or the issuance, extension, renewal or increase of such Letter of Creditwritten confirmation thereof. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersEnergySolutions), 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 and 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-sub- agent may perform any of and all of its their duties and exercise its their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except Subject to the extent that a court terms of competent jurisdiction determines in a final and non appealable judgment that this paragraph, the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Companyfrom its capacity as such. Upon any In connection with such resignation, the Required Administrative Agent shall give notice of its intent to resign to the Lender Parties and EnergySolutions. Upon receipt of any such notice of resignation, the Majority Lenders shall have the right, in consultation with the consent of the Company (not to be unreasonably withheld or delayed)EnergySolutions, to appoint a successor. If no successor shall have been so appointed by the Required Majority Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignationintent to resign, then the retiring Administrative Agent may (but shall not be obligated to)may, on behalf of the Lenders and the Issuing LendersLender Parties, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent Agent, which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company EnergySolutions to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company by Parent, EnergySolutions and such successor. After Notwithstanding the foregoing, in the event no successor Administrative Agent’s 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 Lender Parties and EnergySolutions, 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 Majority 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 IX and Section 9.03 10.2, as well as any exculpatory, reimbursement and indemnification provisions set forth elsewhere in this Agreement or 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 (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken the matters referred to in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), proviso under clause (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Creditabove. Each Lender and each Issuing Lender Party acknowledges that it has, independently and without reliance upon the Administrative Agent Agent, the Arrangers or any other Lender Party, or any of their 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 Lender Party also acknowledges that it will, independently and without reliance upon the Administrative Agent Agent, the Arrangers or any other Lender Party, or any other their 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. The Administrative Agent shall not be responsible or have any liability forEach Lender, by delivering its signature page to this Agreement and funding its Loans on the Closing Date, or delivering its signature page to an Assignment and Assumption or an Accession Agreement as provided in Section 2.18(g) pursuant to which it shall become a Lender hereunder, shall be deemed to have any duty acknowledged receipt of, and consented to ascertainand approved, inquire intoeach Loan Document and each other document required to be delivered to, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoingbe approved by or satisfactory to, the Administrative Agent or the Lenders on 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 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 (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant Lenders in its or prospective their respective individual capacities) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the 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. Notwithstanding anything herein to the contrary, neither the Arrangers nor any Person named on the cover page of this Agreement as a “syndication agent” or a “documentation agent” shall have any duties or obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as a Lender or Participant is a Disqualified Institution or (yan Issuing Bank) but shall have any liability with respect to or arising out the benefit of any assignment or participation the indemnities provided for hereunder. The provisions of Loans, or disclosure this Article are solely for the benefit of confidential information, to any Disqualified Institution. It is agreed that the Syndication Administrative Agent, the Co-Documentation Agents Lenders and the Joint Lead Arrangers shallIssuing Banks, in their capacities and none of Parent, EnergySolutions or any other Loan Party shall have any rights as such, have no duties or responsibilities under this Agreement.a third-party beneficiary of any such provisions. 115
Appears in 1 contract
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks, on behalf of itself and its applicable Affiliates and in their respective capacities as such and as Secured Parties in respect of any Secured Hedging Obligations or Banking Services Obligations, as applicable, hereby irrevocably appoints Citibank, JPM (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf behalf, including execution of the other Loan Documents or any other documents with respect to the rights of the Secured Parties and the Collateral as contemplated by this Agreement and the Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms hereof and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights Each of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, Secured Parties hereby irrevocably appoints and the Issuing Lenders and the Borrowers shall not 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 authorizes the Administrative Agent is not intended (as collateral agent) to connote act as the agent of (and to hold any fiduciary security interest created by the Loan Documents for and on behalf of or other implied (or expresson trust for) obligations arising under agency doctrine such Secured Party for purposes of acquiring, holding and enforcing any applicable Law. Instead and all Liens on Collateral granted by the Loan Parties to secure any of the Obligations, together with such term is used powers and discretion as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting partiesare reasonably incidental thereto. The Lenders agree that any such actions by the Administrative Agent shall bind such Secured Party. 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers any Loan Party or any Subsidiary subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and without acknowledge that the Administrative Agent shall not be under any duty obligation to account therefor provide such information to the Lendersthem. 192 The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is continuingintended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powerspower, except discretionary rights and powers that are expressly contemplated hereby or by the other Loan Documents that and which the Administrative Agent is required to exercise in writing as directed in writing by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance Requirements of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Company Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the relevant circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct misconduct, as determined by the final judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyBorrower or any Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenantscovenant, agreements agreement or other terms term or conditions condition set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere hereinin 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 uponor (vii) any property, and shall not incur book or record of 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender Loan Party or any Issuing LenderAffiliate thereof, provided, further that, the Administrative Agent may presume that such condition foregoing paragraph is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel solely for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties benefit of the Administrative Agent and not any such sub-agentLender. Each Lender agrees that, and shall apply to their respective activities in connection except with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the written consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all paymentsit will not take any enforcement action hereunder or under any other Loan Document, communications and determinations provided accelerate the Obligations under any Loan Document, or exercise any right that it might otherwise have under applicable law or otherwise to be made bycredit bid at any foreclosure sale, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appointUCC sale, with the consent any sale under Section 363 of the Company (not to be unreasonably withheld Bankruptcy Code or delayed)other similar Dispositions of Collateral. Notwithstanding the foregoing, however, except as otherwise expressly limited herein, a successor Administrative Agent hereunder. Upon the acceptance of Lender may take action to preserve or enforce its appointment as Administrative Agent hereunder by rights against a successorLoan Party where a deadline or limitation period is applicable that would, absent such successor shall succeed to and become vested with all action, bar enforcement of the rightsObligations held by such Lender, powers, privileges and duties including the filing of a proof of claim in a case under the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed Bankruptcy Code. 193 Notwithstanding anything to the retiring Administrative Agent as contrary contained herein or in any of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article Borrower, the Administrative Agent and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it was acting as being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms hereof and all powers, rights and remedies under the other Loan Documents may be exercised solely by the Administrative Agent and (ii) after such resignation for as long as in the event of a foreclosure by the Administrative Agent on any of them continues the Collateral pursuant to act a public or private sale or in any capacity hereunder or under the other Loan Documents, including in respect event of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, other Disposition (including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon 363 of the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting LenderBankruptcy Code), (aA) such successor shall succeed to the Administrative Agent, as agent for and become vested with all representative of the rightsSecured Parties, powersshall be entitled, privileges for the purpose of bidding and duties making settlement or payment of the retiring Issuing Xxxxxxpurchase price for all or any portion of the Collateral sold at any such sale, (b) to use and apply all or any portion of the retiring Issuing Lender shall be discharged from all Obligations as a credit on account of their respective duties and obligations hereunder or under the other Loan Documents purchase price for any Collateral payable by the Administrative Agent at such Disposition and (cB) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender may be the purchaser or licensor of all or any portion of their Related Parties and based on such documents and information Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as it has deemed appropriate, made its own credit analysis and decision to enter into such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not Lenders hereby irrevocably authorizes (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is and by entering into a Disqualified Institution or (y) have any liability Hedge Agreement with respect to or arising out any Secured Hedging Obligation and/or by entering into documentation in connection with any Banking Services Obligation, each of any assignment or participation the other Secured Parties hereby authorizes and shall be deemed to authorize) the Administrative Agent, on behalf of Loans, or disclosure of confidential informationall Secured Parties, to take any Disqualified Institution. It is agreed that of the Syndication Agent, following actions upon the Co-Documentation Agents and instruction of the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.Required Lenders:
Appears in 1 contract
Samples: First Lien Credit Agreement (Isos Acquisition Corp.)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, DBNY (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers any Loan Party or any Subsidiary subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and without acknowledge that the Administrative Agent shall not be under any duty obligation to account therefor provide such information to the Lendersthem. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law; it being understood that such term is used merely as a matter of market custom, and is continuingintended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powerspower, except discretionary rights and powers that are expressly contemplated hereby or by the other Loan Documents that and which the Administrative Agent is required to exercise in writing as directed in writing by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Sections 7.02 and 9.02), Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawlaws, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Lead Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the relevant circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct misconduct, as determined by the final judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyBorrowers or any Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenantscovenant, agreements agreement or other terms term or conditions condition set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere hereinin any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative AgentAgent or (vii) any property, book or record of any Loan Party or any Affiliate thereof. The Administrative Agent shall be entitled to rely upon, and shall not incur If 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making Lender acquires knowledge of a LoanDefault or Event of Default, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, it shall promptly notify the Administrative Agent may presume that such condition is satisfactory to such and the other Lenders thereof in writing. Each Lender or such Issuing Lender unless agrees that, except with the written consent of the Administrative Agent shall have received notice to the contrary from such Lender Agent, it will not take any enforcement action hereunder or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by Document, accelerate the Obligations under any Loan Document, or through exercise any one right that it might otherwise have under applicable law or more sub-agents appointed by otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section 363 of the Administrative AgentBankruptcy Code or other similar Dispositions of Collateral. The Administrative Agent and any such sub-agent Notwithstanding the foregoing, however, a Lender may perform any and all of its duties and exercise take action to preserve or enforce its rights and powers against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations held by or through their respective Related Partiessuch Lender, including the filing of a proof of claim in a case under the Bankruptcy Code. The exculpatory provisions of this Article shall apply to any such sub-agent and Notwithstanding anything to the Related Parties contrary contained herein or in any of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions Borrowers, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of this Article the Collateral or to enforce the Loan Guaranty; it being understood and Section 9.03 shall continue in effect for agreed that all powers, rights and remedies hereunder may be exercised solely by, the benefit of such retiring Administrative Agent, its sub-agents and their respective Related on behalf of the Secured Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent accordance with the terms hereof and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges rights and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or remedies under the other Loan Documents may be exercised solely by, the Administrative Agent, and (cii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the successor Xxxxxxx Xxxxxx Administrative Agent, as agent for and representative of the Secured Parties, shall issue letters of credit in substitution be entitled, for the Letters purpose of Creditbidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, if any, outstanding to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender Disposition and each Issuing Lender acknowledges that it has, independently and without reliance upon (B) the Administrative Agent or any other Lender may be the purchaser or licensor of any or all of their Related Parties and based on such documents and information Collateral at any such Disposition. No holder of any Secured Hedging Obligation, Banking Services Obligation or Ancillary Obligation in its respective capacity as it has deemed appropriate, made its own credit analysis and decision to enter into such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not Lenders hereby irrevocably authorizes (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is and by entering into a Disqualified Institution or (y) have any liability Hedge Agreement with respect to or arising out any Secured Hedging Obligation, by entering into documentation in connection with any Banking Services Obligation and/or by entering into any Ancillary Documents in connection with any Ancillary Obligation, each of any assignment or participation of Loans, or disclosure of confidential information, the other Secured Parties hereby authorizes and shall be deemed to any Disqualified Institution. It is agreed that authorize) the Syndication Administrative Agent, on behalf of all Secured Parties to take any of the Co-Documentation Agents and following actions upon the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.instruction of the Required Lenders:
Appears in 1 contract
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofhereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the The provisions of this Article are solely for the benefit of the Administrative Agent, the LendersLenders and the Issuing Banks, and the Issuing Lenders and the Borrowers Loan Parties shall not have rights as a third third-party beneficiary of any of such provisions, except as set forth in the sixth, eighth and ninth paragraphs below. 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 Lawlaw. 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 Person 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 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 bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for for, and generally engage in any kind of business with the Borrowers Company, the Borrower or any Subsidiary of their respective Subsidiaries or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documentsherein, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (a) the Administrative Agent (a) 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 in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawlaw, and (c) shall not, except as expressly set forth herein and in herein, the other Loan Documents, Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Company, the Borrower or any of its their respective Subsidiaries that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall be is necessary, under the circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan DocumentAgreement, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Defaultdefault, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any the Issuing LenderBank issuing such Letter of Credit, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender Bank prior to the making of such Loan or the issuance, extension, renewal or increase issuance of such Letter of Credit. 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 BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agentssub‑agents. The Administrative Agent (a) may resign at any time by notifying the Lenders, the Issuing Lenders Banks and the CompanyBorrower, subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, or (b) may be removed as Administrative Agent by the Required Lenders (excluding the Lender then acting as Administrative Agent) if the Administrative Agent (i) is found by a court of competent jurisdiction in a final, non-appealable judgment to have committed gross negligence, bad faith or willful misconduct in the course of performing its duties hereunder or (ii) has become a Defaulting Lender. Upon any such resignationresignation or removal, the Required Lenders shall have the right, with the consent of the Company Borrower (not to be unreasonably withheld or delayedunless 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 thirty (30) days after the retiring Administrative Agent gives notice of its resignationresignation or upon the removal, then then, in the case of resignation by the Administrative Agent, the retiring Administrative Agent may (but shall not be obligated to)may, or in the case of removal of the Administrative Agent, the Required Lenders may, on behalf of the Lenders and the Issuing LendersBanks, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documentshereunder. The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all Each Lender acknowledges and agrees that the rights, powers, privileges extensions of credit made hereunder are commercial loans and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit and not investments in substitution for the Letters of Credit, if any, outstanding at the time of such succession a business enterprise or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Creditsecurities. Each Lender and each Issuing Lender acknowledges 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 any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this AgreementAgreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender and each Issuing Lender also acknowledges that it willshall, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunderthereunder 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. The Administrative Agent shall not be responsible Notwithstanding anything to the contrary contained herein or have in any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoingother Loan Document, the Administrative Agent shall not is hereby irrevocably authorized by each Lender (x) be obligated without requirement of notice to ascertain, monitor or inquire as to whether consent of any Lender except as expressly required by Section 9.02) to take any action requested by the Borrower having the effect of releasing any guarantee or Participant collateral obligations (i) in connection with any transaction not prohibited by any Loan Document or prospective Lender or Participant is a Disqualified Institution or that has been consented to in accordance with Section 9.02, (yii) have any liability solely with respect to any Pledged Collateral obligations, upon the occurrence of the Asset Growth Achievement in accordance with Section 5.10(c), (iii) in connection with any Guarantor ceasing to be a Material Subsidiary or arising out otherwise becoming an Excluded Subsidiary as a result of a transaction permitted under the Loan Documents or (iv) under the circumstances described in the immediately succeeding paragraph below. Upon the Payment in Full, the Guarantors and Pledgors shall be automatically released from their obligations under the Loan Documents (other than those expressly stated to survive such termination), all without delivery of any instrument or performance of any act by any Person. In the case of any disposition of any Pledged Collateral in a transaction permitted pursuant to Section 6.03(c), the Liens created by any of the Loan Documents on such property shall be automatically released without need for further action by any Person upon the consummation of such disposition. Upon request of the Borrower, the Administrative Agent shall, at the Borrower’s expense, take all such action reasonably requested by the Borrower to evidence the release of such Pledged Collateral from the assignment and security interest granted under the Loan Documents or participation of Loansto subordinate its interest in such item, or disclosure of confidential information, to any Disqualified Institution. It is agreed that release such Guarantor from its obligations under the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shallGuaranty, in their capacities as such, have no duties or responsibilities under each case in accordance with the terms of the Loan Documents and this AgreementSection.
Appears in 1 contract
Samples: Lease Agreement (Four Corners Property Trust, Inc.)
The Administrative Agent. Each of the Lenders and Issuing Lenders hereby irrevocably appoints Citibank, JPMCB (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf (including, without limitation, in any insolvency or liquidation proceeding), including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms hereof and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person 134 serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers any Loan Party or any Subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and without acknowledge that the Administrative Agent shall not be under any duty obligation to account therefor provide such information to the Lendersthem. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is continuingintended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powerspower, except discretionary rights and powers that are expressly contemplated hereby or by the other Loan Documents that and which the Administrative Agent is required to exercise in writing as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance Requirements of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party 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 is necessary, or as the Administrative Agent shall believe believes in good faith shall be necessary, under the relevant circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct misconduct, as determined by the final judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyBorrower or any Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenantscovenant, agreements agreement or other terms term or conditions condition set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the Administrative Agent pursuant to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere hereinin any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or (vii) any property, book or record of any Loan Party or any Affiliate thereof. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and each Secured Party agree that (i) no Secured Party (other than the Administrative Agent) shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it being understood that any realization upon the Collateral or enforcement on any Loan Guaranty against the Loan Parties pursuant hereto or pursuant to any Loan Document may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms hereof or thereof, and (ii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code or any similar provision of any other Debtor Relief Law), (A) the Administrative Agent, as agent for and representative of the Secured Parties, 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 sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation in its capacity as such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Secured Party agrees that the Administrative Agent may in its sole discretion, but is under no obligation to, credit bid any part of the Secured Obligations or to purchase or retain or acquire any portion 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by that it believes to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, Person and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, Loan that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have has received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of CreditLoan. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), 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 hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agentit. The Administrative Agent and any such sub-agent may perform any and all of its their respective duties and exercise its their respective rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article 8 shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, 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. The Secured Parties agree that the Administrative Agent shall not be responsible to the Secured Parties for the negligence or misconduct of any sub-agents agent except to the extent that a court of competent jurisdiction determines in a final and non appealable nonappealable judgment that the such Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agentsagent. The Administrative Agent may resign at any time by notifying giving ten days’ written notice to the Lenders, the Issuing Lenders and the CompanyBorrower; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s resignation shall not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. If the Administrative Agent is a Defaulting Lender under clause (a), (b) or (e) of the definition thereof, either the Required Lenders or the Borrower may, upon ten days’ notice, remove the Administrative Agent; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s removal shall, at the option of the Borrower, not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, with the consent of the Company Borrower (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a commercial bank or trust company with an office offices in New York, New Yorkthe U.S. having combined capital and surplus in excess of $1,000,000,000, and with an office in Canada or an Affiliate which, for the avoidance of any such bank; provided that (x) in no event doubt, shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution “U.S. person” and (y) if a “financial institution” within the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent meaning of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.Treasury Regulations
Appears in 1 contract
Samples: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
The Administrative Agent. Each of the Lenders Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, and each Issuing Lenders Bank hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect In addition, to the consent rights extent required under the laws of any jurisdiction other than the United States of America, each of the Company relating Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, and each Issuing Bank hereby grants to a successor agent as set forth below, the Administrative Agent any required powers of attorney to execute any Collateral Document governed by the laws of such jurisdiction on such Lender’s or such Issuing Bank’s behalf. The provisions of this Article are solely for the benefit of the Administrative Agent, Agent and the Lenders, Lenders (including the Swingline Lender and the Issuing Lenders Banks), and neither the Borrowers Borrower nor any other Loan Party shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” as used 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 Lawlaw. Instead Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The Person 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 Agent, and 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 such bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lendershereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), provided that and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall be necessary, necessary under the circumstances as provided in Sections 7.02 and Section 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 final and nonappealable judgmentjurisdiction. 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of in any DefaultLoan Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other 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 IV or elsewhere hereinin 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, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities facility provided for herein as well as activities as Administrative Agent. The Subject to the appointment and acceptance of a successor Administrative Agent shall not be responsible for as provided in this paragraph, the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Banks and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company Borrower (such consent not to be unreasonably withheld withheld, delayed or delayedconditioned and not to 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 thirty (30) days after the retiring Administrative Agent gives notice of its resignationresignation (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to)may, on behalf of the Lenders and the Issuing LendersBanks, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender Lender. Whether or Disqualified Institution and (y) if the not a successor Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointmentbeen appointed, then such resignation shall nonetheless become effective in accordance with such notice and (a) on the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunderResignation 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 of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documentshereunder. The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all Each Lender acknowledges and agrees that the rights, powers, privileges extensions of credit made hereunder are commercial loans and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit and not investments in substitution for the Letters of Credit, if any, outstanding at the time of such succession a business enterprise or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Creditsecurities. Each Lender and each Issuing Lender acknowledges 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 of this credit facility or any other Lender or any of and their respective Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this AgreementAgreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender and each Issuing Lender also acknowledges that it willshall, independently and without reliance upon the Administrative Agent Agent, any arranger of this credit facility or any amendment hereto or any other Lender or any other and their respective Related Parties and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunderthereunder and in deciding whether or to the extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder. None of the Lenders, if any, identified in this Agreement as a Syndication Agent or Co-Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Syndication Agent or Co-Documentation Agents, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement. In its capacity, the Administrative Agent is a “representative” of the Secured Parties within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Secured Party (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Secured Parties upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Secured Parties any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Secured Parties. In furtherance of the foregoing and not in limitation thereof, no Banking Services Obligations or Swap Obligations constituting Secured Obligations will create (or be responsible 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 arrangement in respect of Banking Services or Swap Agreements, as applicable, 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. The Lenders hereby authorize the Administrative Agent, at its option and in its discretion, to release any liability forLien granted to or held by the Administrative Agent upon any Collateral (i) as described in Section 9.02(d); (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 have any duty consented to ascertain, inquire into, monitor in writing by the Required Lenders or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality all of the foregoingLenders, as applicable, and upon at least five (5) Business Days’ prior written request by the Borrower to the Administrative Agent, the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for the benefit of the Secured Parties herein or pursuant hereto upon the Collateral that was sold or transferred; provided, however, that (i) the Administrative Agent 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 (xii) such release shall not in any manner discharge, 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, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the Collateral. Any execution and delivery by the Administrative Agent of documents in connection with any such release shall be obligated without recourse to ascertain, monitor or inquire as to whether warranty by the Administrative Agent. In case of the pendency of any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability proceeding with respect to any Loan Party under any Federal, state or arising out foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any assignment Loan or participation any LC Disbursement shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of Loans, whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.otherwise:
Appears in 1 contract
The Administrative Agent. Each of the Lenders and Issuing Lenders hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf the Person named as the Administrative Agent hereunder in the heading of this Agreement and under the other Loan Documents its successors and permitted assigns 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 and thereofhereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to The Administrative Agent shall also act as the consent rights collateral agent under the Loan Documents, and each of the Company relating Lenders hereby irrevocably appoints the Administrative Agent as the agent of such Lender 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 Loan Document Obligations, together with such powers and discretion as are reasonably incidental thereto. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a successor agent Lender as set forth below, any other Lender and may exercise the provisions of this Article are solely for the benefit of same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money 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, Parent or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein, and the Issuing Lenders and Administrative Agent’s duties hereunder shall be administrative in nature. Without limiting the Borrowers generality of the foregoing, (a) the Administrative Agent shall not have rights as be subject to any fiduciary or other implied duties, regardless of whether a third party beneficiary of any of such provisions. It Default has occurred and is continuing (and 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 law, and that such term is used as a matter of market custom, custom and is intended to create or reflect only an administrative relationship between contracting parties. 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 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, 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 Borrowers or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent (a) 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 in writing 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 Sections 7.02 and Section 9.02), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counselopinion, may could expose the Administrative Agent it to liability or that is 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 Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawlaw, and (c) shall not, except as expressly set forth herein and in herein, the other Loan Documents, Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower, Parent or any of its Subsidiaries or other Affiliates that is communicated to or obtained by the 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, or as the Administrative Agent shall believe in good faith shall to be necessary, under the circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct as (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). Notwithstanding the foregoing, no action nor any omission to act, taken by the Administrative Agent at the direction of the Required Lenders (or such other number or percentage of the Lenders as shall be provided for herein or in the other Loan Documents) shall constitute gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by the CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein in this Agreement or therein any other Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, 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, sent or otherwise authenticated by the proper PersonPerson (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 upon upon, and shall not incur any liability for relying upon, any statement made to it orally or by telephone and believed by it to have been be made by the proper PersonPerson (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 thereonsuch statement prior to receipt of written confirmation thereof. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender Lender, as the case may be, unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender Lender, as the case may be, prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of CreditLoan. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), 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. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from, or be responsible for any loss, cost or expense suffered on account of, any determination by the Administrative Agent (a) that any Lender is a Defaulting Lender, or the effective date of such status, it being further understood and agreed that the Administrative Agent shall not have any obligation to determine whether any Lender is a Defaulting Lender, (b) [reserved], (c) of whether the Required Lenders or any other requisite Lenders shall have consented to any amendment, waiver or other modification of any Loan Document, and shall be entitled to rely, and shall not incur any liability for relying, on the records maintained by it as contemplated by Section 9.04(e) and (d) as contemplated by the definition of the term “Additional Guarantee and Collateral Requirement” or by Section 5.15. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article VIII 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 funding of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any of its sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Subject to the terms of this paragraph, the Administrative Agent may resign at any time by notifying the Lendersfrom its capacity as such. In connection with such resignation, the Issuing Administrative Agent shall give notice of its intent to resign to the Lenders and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the consent of the Company (not to be unreasonably withheld or delayed)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 (but shall not be obligated to)may, on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in . In the event no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution shall have been so appointed and (y) if shall have accepted such appointment within 30 days after the retiring Administrative Agent shall notify gives notice of its intent to resign (the Company and “Resignation Effective Date”), the Lenders that no qualifying Person has accepted such appointment, then such retiring Administrative Agent’s resignation shall nonetheless nevertheless become effective in accordance with such notice and on the Resignation Effective Date. On the Resignation Effective Date, (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except Documents, provided that solely for purposes of maintaining any indemnity payments or other amounts then owed security interest granted to the Administrative Agent under any Loan 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 retiring Administrative Agent, all paymentsshall continue to hold such Collateral, communications and determinations provided to be made bysolely as gratuitous bailee, to or through the Administrative Agent shall instead be made by or to in each Lender and each Issuing Lender directly case until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon is appointed and accepts such appointment in accordance with this paragraph (it being understood and agreed that the acceptance of its appointment as retiring Administrative Agent hereunder by a successorshall have no duty or obligation to take any further action under any Loan Document, including any action required to maintain the perfection of any such successor security interest), and (b) the Required Lenders shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent Agent, provided that (i) all payments required to be made hereunder or under any other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed Loan Document to the retiring Administrative Agent as for the account of the resignation effective date), and any Person other than the retiring Administrative Agent shall be discharged from its duties made directly to such Person and obligations hereunder (ii) all notices and under other communications required or contemplated to be given or made to the other Loan Documents. The fees payable by the Company to a successor retiring Administrative Agent shall also directly be the same as those payable given or made to its predecessor unless otherwise agreed between the Company and such successoreach Lender. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article VIII and Section 9.03 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 (i) it was acting as the Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken the matters referred to in connection with transferring the agency to any successor Administrative Agentproviso under clause (a) above. Any resignation by Citibank Upon the acceptance of its appointment as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lenderhereunder by a successor, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing XxxxxxAdministrative Agent, (b) and the retiring Issuing Lender Administrative Agent shall be discharged (to the extent not already discharged as provided above) from all of their respective its duties and obligations obligations, hereunder or and under the other Loan Documents 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 (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Creditsuccessor. Each Lender acknowledges and each Issuing agrees that the extensions of credit made hereunder are commercial loans and not investments in a business enterprise or securities. Each Lender acknowledges 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 Agent, the Arranger, any other Lender or any of their Related Parties and based on the financial statements prepared by Parent and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this AgreementAgreement and the other Loan Documents. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or Agent, the Arranger, any other Lender or any other their Related Parties and based on such documents and information (which may contain MNPI concerning the Borrower, Parent and its Affiliates) as it shall from time to time deem appropriateappropriate at the time, continue to make its own credit decisions in taking or not taking action under or based upon this Agreement and the other Loan Documents. Each Lender, by delivering its signature page to this Agreement, or delivering its signature page to an Assignment and Assumption or any other 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 or any related agreement or any and each other document furnished hereunder or thereunder. The Administrative Agent shall not required to be responsible or have any liability fordelivered to, or have any duty to ascertain, inquire into, monitor be approved by or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoingsatisfactory to, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether on the Closing Date. In case of the pendency of any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability proceeding with respect to any Loan Party under any Debtor Relief Law now or arising out hereafter in effect, the Administrative Agent (irrespective of whether the principal of any assignment Loan shall then be due and payable as herein expressed or participation by declaration or otherwise and irrespective of Loans, whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.otherwise:
Appears in 1 contract
Samples: Term Loan Credit Agreement (Tupperware Brands Corp)
The Administrative Agent. Each of the Lenders Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, and the Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect In addition, to the consent rights extent required under the laws of any jurisdiction other than the United States of America, each of the Company relating Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, and the Issuing Banks hereby grant to a successor agent as set forth below, the Administrative Agent any required powers of attorney to execute any Collateral Document governed by the laws of such jurisdiction on such Lender’s or such Issuing Bank’s behalf. The provisions of this Article are solely for the benefit of the Administrative Agent, Agent and the Lenders, Lenders (including the Swingline Lender and the Issuing Lenders Banks), and neither the Borrowers Borrower nor any other Loan Party shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” as used 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 Lawlaw. Instead Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The Person 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 Agent, and 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 such bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lendershereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), provided that and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall be necessary, necessary under the circumstances as provided in Sections 7.02 and Section 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 final and nonappealable judgmentjurisdiction. 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of in any DefaultLoan Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other 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 IV or elsewhere hereinin 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, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Subject to the appointment and acceptance of a successor Administrative Agent shall not be responsible for as provided in this paragraph, the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Banks and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, right (with the consent of the Company Borrower (such consent not to be unreasonably withheld or delayed); provided that no consent of the Borrower shall be required if an Event of Default under clause (a), (b), (h), (i) or (j) of Article VII 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 (but shall not be obligated to)may, on behalf of the Lenders and the Issuing LendersBanks, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documentshereunder. The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all Each Lender acknowledges and agrees that the rights, powers, privileges extensions of credit made hereunder are commercial loans and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit and not investments in substitution for the Letters of Credit, if any, outstanding at the time of such succession a business enterprise or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Creditsecurities. Each Lender and each Issuing Lender acknowledges 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 any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this AgreementAgreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender and each Issuing Lender also acknowledges that it willshall, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunderthereunder and in deciding whether or to the extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder. None of the Lenders, if any, identified in this Agreement as a Syndication Agent or Co-Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Syndication Agent or Co-Documentation Agents, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph. 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 not have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement. In its capacity, the Administrative Agent is a “representative” of the Secured Parties within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Administrative Agent to enter into each of the 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 responsible 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 have appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Secured Parties. The Lenders hereby authorize the Administrative Agent, at its option and in its discretion, to release or, as applicable, subordinate any liability forLien granted to or held by the Administrative Agent upon any Collateral (i) as described in Section 9.02(d); (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 and to enter into non-disturbance or similar agreements in connection with the licensing of intellectual property permitted pursuant to the terms of this Agreement. 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 have any duty consented to ascertain, inquire into, monitor in writing by the Required Lenders or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality all of the foregoingLenders, as applicable, and upon at least five (5) Business Days’ prior written request by the Borrower to the Administrative Agent (or such shorter period as is acceptable to the Administrative Agent), the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for the benefit of the Secured Parties herein or pursuant hereto upon the Collateral that was sold or transferred; provided, however, that (i) the Administrative Agent 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 (xii) such release shall not in any manner discharge, 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, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the Collateral. Any execution and delivery by the Administrative Agent of documents in connection with any such release shall be obligated without recourse to ascertainor warranty by the Administrative Agent. In addition, monitor at the request of the Borrower, the Administrative Agent shall (and hereby is irrevocably authorized by the Lenders to) subordinate any Lien on the Collateral or inquire as enter into non-disturbance or similar agreements in each case to whether the extent provided in Section 9.14. In case of the pendency of any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability proceeding with respect to any Loan Party under any Federal, state or arising out foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any assignment Loan or participation any LC Disbursement shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of Loans, whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.otherwise:
Appears in 1 contract
Samples: Credit Agreement (Medivation, Inc.)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Bank, each on behalf of itself and any of its Affiliates that is a Secured Party, hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofhereof, together with such actions and powers as are reasonably incidental thereto. Except with respect In addition, to the consent rights extent required under the laws of any jurisdiction other than the U.S., each of the Company relating Lenders and the Issuing Bank hereby grants to a successor agent as set forth belowthe Administrative Agent any required powers of attorney to execute any Collateral Document governed by the laws of such jurisdiction on such Lender’s or Issuing Bank’s behalf. Except for the final paragraph of this Article VIII, the provisions of this Article are solely for the benefit of the Administrative Agent, the LendersCredit Parties, and the Issuing Lenders and the Borrowers Loan Parties shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” as used 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 Lawlaw. Instead Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The 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 Agent, and 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 such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lendershereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), provided that and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company any Loan Party or any of its Subsidiaries that is communicated to or obtained by the 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, or as the Administrative Agent shall believe in good faith shall be necessary, necessary under the circumstances as provided in Sections 7.02 and Section 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 final and nonappealable judgmentjurisdiction. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice 115 thereof is given to the Administrative Agent by the CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder under any Loan Document or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of in any DefaultLoan Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, Agreement or any other 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 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Subject to the appointment and acceptance of a successor Administrative Agent shall not be responsible for as provided in this paragraph, the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Bank and the CompanyBorrower thirty (30) days in advance. Upon any such resignation, the Required Lenders shall have the right, in consultation with the consent Borrower, to appoint a successor which shall be a commercial bank with an office in New York, New York, or an Affiliate of any such commercial bank, which successor, so long as no Event of Default shall have occurred and be continuing, shall be subject to approval by the Company Borrower (which approval shall not to be unreasonably withheld or delayed), to appoint a successor. 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 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (but shall not be obligated to)may, on behalf of the Lenders and the Issuing LendersBank, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a commercial bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such commercial bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from 116 its duties and obligations hereunder and under the other Loan Documentshereunder. The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After Notwithstanding the foregoing, in the event no successor Administrative Agent’s 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 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 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 duty 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 the Issuing Bank. Following the effectiveness of the Administrative Agent’s resignation from its capacity as such, the provisions of this Article Article, Section 2.17(d) and Section 9.03 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 (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken the matters referred to in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), proviso under clause (a) such successor shall succeed to above. Each Lender acknowledges and become vested with all agrees that the extensions of the rights, powers, privileges credit made hereunder are commercial loans and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit and not investments in substitution for the Letters of Credit, if any, outstanding at the time of such succession a business enterprise or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Creditsecurities. Each Lender and each Issuing Lender acknowledges 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 of this credit facility or any amendment thereto or any other Lender or any of and their respective Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this AgreementAgreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender and each Issuing Lender also acknowledges that it willshall, independently and without reliance upon the Administrative Agent Agent, any arranger of this credit facility or any amendment thereto or any other Lender or any other and their respective Related Parties 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, Agreement or any other Loan Document or Documents, any related agreement or any document furnished hereunder or thereunderthereunder and in deciding whether or to the 117 extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder. The Administrative Anything herein to the contrary notwithstanding, no Lead Arranger or Syndication Agent listed on the cover page hereof shall not be responsible or have any liability forpowers, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this AgreementCredit 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.
Appears in 1 contract
Samples: Credit Agreement (Virtusa Corp)
The Administrative Agent. Each As of the Amendment No. 3 Closing Date, the Lenders and Issuing Lenders hereby have irrevocably appoints Citibank, appointed JPMCB (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes hereby authorize 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers any Loan Party or any Subsidiary subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and without acknowledge that the Administrative Agent shall not be under any duty obligation to account therefor provide such information to the Lendersthem. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred or Event of Default exists and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is continuingintended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powerspower, except discretionary rights and powers that are expressly contemplated hereby or by the other Loan Documents that and which the Administrative Agent is required to exercise in writing as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance Requirements of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings or the Company Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Parties 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 is necessary, or as the Administrative Agent shall believe believes in good faith shall be necessary, under the relevant circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct as determined by the final judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyBorrower or any Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenantscovenant, agreements agreement or other terms term or conditions condition set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere hereinin 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 uponor (vii) any property, and shall not incur book or record of 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender Loan Party or any Issuing Lender, Affiliate thereof. Each Lender hereby agrees that (x) if the Administrative Agent may presume notifies such Lender that the Administrative Agent has determined in its sole discretion that any funds received by such condition is satisfactory Lender from the Administrative Agent or any of its Affiliates (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) were erroneously transmitted to such Lender (whether or not known to such Issuing Lender), and demands the return of such Payment (or a portion thereof), such Lender unless shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent shall have the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received notice by such Lender to the contrary from date such Lender or such Issuing Lender prior amount is repaid to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for at the Borrowers), independent accountants greater of the NYFRB Rate and other experts selected a rate determined by it, and shall not be liable for any action taken or not taken by it the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (y) to the advice extent permitted by applicable law, such Lender shall not assert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any such counseldemand, accountants claim or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed counterclaim by the Administrative AgentAgent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties A notice of the Administrative Agent and to any such sub-agentLender under this paragraph shall be conclusive, 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 Agentabsent manifest error. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent Each Lender hereby further agrees that if it receives a court of competent jurisdiction determines in a final and non appealable judgment that Payment from the Administrative Agent acted or any of its Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Administrative Agent (or any of its Affiliates) with gross negligence respect to such Payment (a “Payment Notice”) or willful misconduct (y) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly notify the selection Administrative Agent of such sub-agents. The occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate amount of any such bank; provided Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. The Borrower hereby agrees that (x) in no the event shall an erroneous Payment (or portion thereof) are not recovered from any Lender that has received such successor Payment (or portion thereof) for any reason, the Administrative Agent shall be a Defaulting subrogated to all the rights of such Lender or Disqualified Institution with respect to such amount and (y) if an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and Borrower or any other Loan Party. Each party’s obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent three preceding paragraphs shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of survive the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions or replacement of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender transfer of rights or obligations by, or the replacement 138 of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunderDocument. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement hereof relating to Disqualified InstitutionsInstitutions by any other Lender. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any other Lender or Participant participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified InstitutionInstitution by any other Lender. It Each Lender agrees that, except with the written consent of the Administrative Agent, it will not take any enforcement action hereunder or under any other Loan Document, accelerate the Obligations under any Loan Document, or exercise any right that it might otherwise have under applicable Requirements of Law or otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section 363 of the Bankruptcy Code or any other similar Disposition of Collateral, whether under other Debtor Relief Laws or otherwise. Notwithstanding the foregoing, a Lender may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations held by such Xxxxxx, including the filing of a proof of claim in a case under the Bankruptcy Code. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Syndication Administrative Agent, on behalf of the Co-Documentation Agents Secured Parties in accordance with the terms hereof and all powers, rights and remedies under the Joint Lead Arrangers shallother Loan Documents may be exercised solely by the Administrative Agent, and (ii) in their capacities the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent, as suchagent for and representative of the Secured Parties, 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 sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have no duties any rights in connection with the management or responsibilities release of any Collateral or of the obligations of any Loan Party under this Agreement.. Each of the Lenders hereby irrevocably authorizes (and by entering into a Hedge Agreement with respect to any Secured Hedging Obligation and/or by entering into documentation in connection with any Banking Services Obligation, each of the other Secured Parties hereby authorizes and shall be deemed to authorize) the Administrative Agent, on behalf of all Secured Parties to take any of the following actions upon the instruction of the Required Lenders:
Appears in 1 contract
Samples: Term Loan Agreement (Daseke, Inc.)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks, each, on behalf of itself and its applicable Affiliates and in their respective capacities as such and as Hedge Banks and/or Cash Management Banks, as applicable, hereby irrevocably appoints CitibankJPMorgan Chase Bank, N.A. (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers any Loan Party or any Subsidiary subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and without acknowledge that the Administrative Agent shall not be under any duty obligation to account therefor provide such information to the Lendersthem. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, Documents and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (a) the Administrative Agent (a) shall not be subject to any fiduciary or other implied dutiesduty, regardless of whether any Default or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligation arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a Default has occurred matter of market custom, and is continuingintended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powerspower, except discretionary rights and powers that are expressly contemplated hereby or by the other Loan Documents that and which the Administrative Agent is required to exercise as directed in writing by the Required Lenders, Required Term A Lenders, Required Pro Rata Lenders, Required Term B Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance Requirements of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Administrative Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders, Required Term A Lenders, Required Pro Rata Lenders, Required Term B Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be is necessary, or as the Administrative Agent shall believe believes in good faith shall be necessary, under the relevant circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct misconduct, as determined by a final and non-appealable judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyAdministrative Borrower or any Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenantscovenant, agreements agreement or other terms term or conditions condition set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the Administrative Agent pursuant to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere hereinin 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 uponor (vii) any property, and shall not incur book or record of 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender Loan Party or any Issuing LenderAffiliate thereof. Each Lender agrees that, except with the written consent of the Administrative Agent may presume that such condition is satisfactory to such Lender Agent, it will not take any enforcement action hereunder or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by Document, accelerate the Obligations under any Loan Document, or through exercise any one right that it might otherwise have under applicable Requirements of Law or more sub-agents appointed by otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section 363 of the Administrative AgentBankruptcy Code or any other similar Disposition of Collateral. The Administrative Agent and Notwithstanding the foregoing, any such sub-agent Lender may perform any and all of its duties and exercise take action to preserve or enforce its rights and powers against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations held by or through their respective Related Partiessuch Lender, including the filing of a proof of claim in a case under the Bankruptcy Code. The exculpatory provisions of this Article shall apply to any such sub-agent and Notwithstanding anything to the Related Parties contrary contained herein or in any of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions Borrowers, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of this Article the Collateral or to enforce the Loan Guaranty; it being understood and Section 9.03 shall continue agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative Agent on behalf of the Secured Parties in effect for accordance with the benefit of such retiring terms hereof, and all powers, rights and remedies under and in connection with the Loan Documents may be exercised solely by the 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 (i) it was acting as Administrative Agent and (ii) after such resignation for as long as in the event of a foreclosure by the Administrative Agent on any of them continues the Collateral pursuant to act a public or private sale or in any capacity hereunder or under the other Loan Documents, including in respect event of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, other Disposition (including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon 363 of the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting LenderBankruptcy Code), (aA) such successor shall succeed to the Administrative Agent, as agent for and become vested with all representative of the rightsSecured Parties, powersshall be entitled, privileges for the purpose of bidding and duties making settlement or payment of the retiring Issuing Xxxxxxpurchase price for all or any portion of the Collateral sold at any such sale, (b) to use and apply all or any portion of the retiring Issuing Lender shall be discharged from all Obligations as a credit on account of their respective duties and obligations hereunder or under the other Loan Documents purchase price for any Collateral payable by the Administrative Agent at such Disposition and (cB) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender may be the purchaser or licensor of all or any portion of their Related Parties and based on such documents and information Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as it has deemed appropriate, made its own credit analysis and decision to enter into such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not Lenders hereby irrevocably authorizes (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is and by entering into a Disqualified Institution or (y) have any liability Hedge Agreement with respect to or arising out any Secured Hedging Obligation and/or by entering into documentation in connection with any Banking Services Obligation, each of any assignment or participation the other Secured Parties hereby authorizes and shall be deemed to authorize) the Administrative Agent, on behalf of Loans, or disclosure of confidential informationall Secured Parties, to take any Disqualified Institution. It is agreed that of the Syndication Agent, following actions upon the Co-Documentation Agents and instruction of the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.Required Lenders:
Appears in 1 contract
The Administrative Agent. Each of the Lenders and Issuing Lenders hereby irrevocably appoints Citibank, Xxxxxxxxx (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers any Loan Party or any Subsidiary subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and without acknowledge that the Administrative Agent shall not be under any duty obligation to account therefor provide such information to the Lendersthem. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, Documents and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (a) the Administrative Agent (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law; it being understood that such term is used merely as a matter of market custom, and is continuingintended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powerspower, except discretionary rights and powers that are expressly contemplated hereby or by the other Loan Documents that and which the Administrative Agent is required to exercise in writing as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Lawlaws, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party 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, or as the Administrative Agent shall believe in good faith shall be necessary, under the relevant circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct misconduct, as determined by the final and non-appealable judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed not to have knowledge of the existence of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyBorrower or any Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenantscovenant, agreements agreement or other terms term or conditions condition set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in Article IV or elsewhere hereinin any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative AgentAgent or (vii) any property, book or record of any Loan Party or any Affiliate thereof. The If any Lender acquires knowledge of the existence of a Default or Event of Default, it shall promptly notify the Administrative Agent shall be entitled and the other Lenders thereof in writing. Each Lender agrees that, except with the written consent of the Administrative Agent, it will not take any enforcement action hereunder or under any other Loan Document, accelerate the Obligations under any Loan Document, or exercise any right that it might otherwise have under applicable law or otherwise to rely uponcredit bid at any foreclosure sale, and shall not incur any liability for relying uponUCC sale, any notice, request, certificate, consent, statement, instrument, document sale under Section 363 of the Bankruptcy Code or other writing (similar Dispositions of Collateral. Notwithstanding the foregoing, however, a Lender may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations held by such Xxxxxx, including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Personfiling of a proof of claim in a case under the Bankruptcy Code. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder Notwithstanding anything to the making contrary contained herein or in any of a Loanthe other Loan Documents, or Holdings, the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing LenderBorrower, the Administrative Agent may presume and each Secured Party agree that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent (i) no Secured Party shall have received notice any right individually to realize upon any of the contrary from such Lender Collateral or such Issuing Lender prior to enforce the making of such Loan or the issuanceDocuments; it being understood and agreed that all powers, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers remedies hereunder shall be exercised solely and under any other Loan Document by or through any one or more sub-agents appointed by exclusively 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 by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective Secured Parties in accordance with such notice the terms hereof and (a) the retiring Administrative Agent shall be discharged from its duties all powers, rights and obligations hereunder and remedies under the other Loan Documents shall be exercised solely and (b) except for any indemnity payments or other amounts then owed to exclusively by, the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as in the event of a foreclosure by the Administrative Agent on any of them continues the Collateral pursuant to act a public or private sale or in any capacity hereunder or under the other Loan Documents, including in respect event of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, other Disposition (including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon 363 of the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting LenderBankruptcy Code), (aA) such successor shall succeed to the Administrative Agent, as agent for and become vested with all representative of the rightsSecured Parties, powersshall be entitled, privileges for the purpose of bidding and duties making settlement or payment of the retiring Issuing Xxxxxxpurchase price for all or any portion of the Collateral sold at any such sale, (b) to use and apply any of the retiring Issuing Lender shall be discharged from all Obligations as a credit on account of their respective duties and obligations hereunder or under the other Loan Documents purchase price for any Collateral payable by the Administrative Agent at such Disposition and (cB) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender may be the purchaser or licensor of any or all of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection with (i) the management or release of any Collateral or of the obligations of any Loan Party under this Agreement or (ii) any waiver, consent, modification or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision amendment with respect to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent Agreement or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunderDocument. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality Each of the foregoing, the Administrative Agent shall not Lenders hereby irrevocably authorizes (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is and by entering into a Disqualified Institution or (y) have any liability Hedge Agreement with respect to or arising out any Secured Hedging Obligation and/or by entering into documentation in connection with any Banking Services Obligation, each of any assignment or participation of Loans, or disclosure of confidential information, the other Secured Parties hereby authorizes and shall be deemed to any Disqualified Institution. It is agreed that authorize) the Syndication Administrative Agent, on behalf of all Secured Parties to take any of the Co-Documentation Agents and following actions upon the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.instruction of the Required Lenders:
Appears in 1 contract
The Administrative Agent. Each of the Lenders and Issuing Lenders hereby irrevocably appoints Citibank, the entity named as Administrative Agent, Agent to act on its behalf serve as the Administrative Agent hereunder and administrative agent under the other Loan Documents 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 and thereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 Any Person serving as the Administrative Agent hereunder shall have the same rights and powers powers, and the same obligations, in its capacity as a Lender as any other Lender and may exercise or perform the same as though it were not the Administrative Agent Agent, and 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 such Person and its Affiliates may accept deposits from, lend money 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 Borrowers Company or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder xxxxxxxxx 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, and in performing its function and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its function and duties hereunder shall be are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Company and its Subsidiaries. Without limiting the generality of the foregoing, (a) the Administrative Agent (a) does not assume, and shall not be subject deemed to have assumed, any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or other implied dutiesPerson, other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default has occurred and is continuingcontinuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties), and each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement, any other Loan Document and/or the transactions contemplated hereby or thereby, (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing 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 Sections 7.02 and Section 9.02), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counselopinion, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawlaw, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries or other Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity. The Neither the Administrative Agent nor any of its Related Parties 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, or as the Administrative Agent shall believe in good faith shall to be necessary, under the circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence negligence, bad faith or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgmentmisconduct. The Administrative Agent shall be deemed not to have knowledge of any Default of the events or circumstances set forth or described in Section 5.02, or any Default, unless and until written notice thereof thereof, stating that it is a “notice under Section 5.02” in respect of this Agreement and identifying the specific clause under such Section, is given to the Administrative Agent by the CompanyCompany or any Default unless and until written notice thereof, another Borrowerstating that it is a “notice of Default” or a “notice of an Event of Default”, is given to the Administrative Agent by the Company or a Lender or an Issuing Lender. The , and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any recital, statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.,
Appears in 1 contract
Samples: Term Credit Agreement
The Administrative Agent. Each of the Lenders Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, and the Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect In furtherance of the foregoing, and not in limitation, each of the Lenders authorizes the Administrative Agent to enter into one or more intercreditor agreements acceptable to the consent rights Administrative Agent in its sole discretion with parties to any Permitted Receivables Facility. Such intercreditor agreements may provide for, among other things, (i) the Administrative Agent’s and the Lenders’ forbearance of, and other limitations on, any exercise of remedies in respect of any equity interests in any Receivables Entity and/or any notes issued by any Receivables Entity to any Receivables Seller in connection with any Permitted Receivables Facility, in any case, that have been pledged to secure the Company relating to a successor agent as set forth belowObligations and/or (ii) disclaimers of interests on, the and releases of security interests in, any Receivables and Permitted Receivables Facility Assets. The provisions of this Article are solely for the benefit of the Administrative Agent, Agent and the LendersLenders (including the Swingline Lender and each Issuing Bank), and neither the Issuing Lenders and the Borrowers Company nor any other Loan Party shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” as used 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 Lawlaw. Instead Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The Person 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 Agent, and 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 such bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of business with the Borrowers Company or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lendershereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), provided that and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall be necessary, necessary under the circumstances as provided in Sections 7.02 and Section 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 final and nonappealable judgmentjurisdiction. The Administrative Agent shall be Exhibit 4.5 deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the CompanyCompany or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of in any DefaultLoan Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other 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 IV or elsewhere hereinin 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, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersCompany), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Subject to the appointment and acceptance of a successor Administrative Agent shall not be responsible for as provided in this paragraph, the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the consent of the Company (not to be unreasonably withheld or delayed)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 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (but shall not be obligated to)may, on behalf of the Lenders and the Issuing LendersBanks, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documentshereunder. The fees payable by the Company any Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company such Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all Each Lender acknowledges that the rights, powers, privileges extensions of credit made hereunder are commercial loans and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit and not investments in substitution for the Letters of Credit, if any, outstanding at the time of such succession a business enterprise or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Creditsecurities. Each Lender and each Issuing Lender further acknowledges 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 any of their Related Parties Exhibit 4.5 and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this AgreementAgreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunderthereunder and in deciding whether or the extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder. None of the Lenders, if any, identified in this Agreement as a Syndication Agent or 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 Agents, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall not have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement. In its capacity, the Administrative Agent is a “representative” of the Secured Parties within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Administrative Agent to enter into each of the 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 responsible 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 have appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Secured Parties. The Lenders hereby authorize the Administrative Agent, at its option and in its discretion, to release any liability forLien granted to or held by the Administrative Agent upon any Collateral (i) as described in Section 9.02(d); (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 have any duty consented to ascertain, inquire into, monitor in writing by the Required Lenders or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality all of the foregoingLenders, as applicable, and upon at least five (5) Business Days’ prior written request by the Company to the Administrative Agent, the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for the benefit of the Secured Parties herein or pursuant hereto upon the Collateral that was sold or transferred; provided, however, that (i) the Administrative Agent 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 Exhibit 4.5 of such Liens without recourse or warranty, and (xii) such release shall not in any manner discharge, affect or impair the Secured Obligations or any Liens upon (or obligations of the Company or any Subsidiary in respect of) all interests retained by the Company or any Subsidiary, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the Collateral. Any execution and delivery by the Administrative Agent of documents in connection with any such release shall be obligated without recourse to ascertain, monitor or inquire as to whether warranty by the Administrative Agent. In case of the pendency of any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability proceeding with respect to any Loan Party under any Federal, state or arising out foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any assignment Loan or participation any LC Disbursement shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of Loans, whether the Administrative Agent shall have made any demand on the Company or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents other Borrower) shall be entitled and the Joint Lead Arrangers shall, empowered (but not obligated) by intervention in their capacities as such, have no duties such proceeding or responsibilities under this Agreement.otherwise:
Appears in 1 contract
Samples: Assignment and Assumption (LKQ Corp)
The Administrative Agent. Each of the Lenders and Issuing Lenders hereby irrevocably appoints Citibank, Credit Suisse (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers any Loan Party or any Subsidiary subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and without acknowledge that the Administrative Agent shall not be under any duty obligation to account therefor provide such information to the Lendersthem. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred or Event of Default exists and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is continuingintended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powerspower, except discretionary rights and powers that are expressly contemplated hereby or by the other Loan Documents that and which the Administrative Agent is required to exercise in writing as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance Requirements of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, Intermediate Holdings or the Company Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Parties 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 is necessary, or as the Administrative Agent shall believe believes in good faith shall be necessary, under the relevant circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct as determined by the final judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyBorrower or any Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenantscovenant, agreements agreement or other terms term or conditions condition set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere hereinin 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 uponor (vii) any property, and shall not incur book or record of 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender Loan Party or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunderthereof. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement hereof relating to Disqualified InstitutionsInstitutions by any other Lender. Without limiting the generality of the foregoing, the Administrative Agent shall not (x(x) be obligated to ascertain, monitor or inquire as to whether any other Lender or Participant participant or prospective Lender or Participant is a Disqualified Institution Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified InstitutionDisqualified Institution by any other Lender. It Each Lender agrees that, except with the written consent of the Administrative Agent, it will not take any enforcement action hereunder or under any other Loan Document, accelerate the Obligations under any Loan Document, or exercise any right that it might otherwise have under applicable Requirements of Law or otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section 363 of the Bankruptcy Code or any other similar Disposition of Collateral, whether under other Debtor Relief Laws or otherwise. Notwithstanding the foregoing, a Lender may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations held by such Lender, including the filing of a proof of claim in a case under the Bankruptcy Code. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Syndication Administrative Agent, on behalf of the Co-Documentation Agents Secured Parties in accordance with the terms hereof and all powers, rights and remedies under the Joint Lead Arrangers shallother Loan Documents may be exercised solely by the Administrative Agent, and (ii) in their capacities the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent, as suchagent for and representative of the Secured Parties, 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 sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have no duties any rights in connection with the management or responsibilities release of any Collateral or of the obligations of any Loan Party under this Agreement.. Each of the Lenders hereby irrevocably authorizes (and by entering into a Hedge Agreement with respect to any Secured Hedging Obligation and/or by entering into documentation in connection with any Banking Services Obligation, each of the other Secured Parties hereby authorizes and shall be deemed to authorize) the Administrative Agent, on behalf of all Secured Parties to take any of the following actions upon the instruction of the Required Lenders:
Appears in 1 contract
Samples: Term Loan Agreement (Concrete Pumping Holdings, Inc.)
The Administrative Agent. Each of the Lenders and Issuing Lenders hereby irrevocably appoints Citibank, the entity named as Administrative Agent, Agent in the heading of this Agreement and its successors to act on its behalf serve as the Administrative 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 and or thereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 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 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, 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 Borrowers Guarantor or any Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (a) the Administrative Agent (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuingcontinuing (and 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, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties), (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 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 Sections 7.02 and 9.02Section 10.02), 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 this Agreement, the other Loan Document Documents or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawlaw, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Guarantor or any of its Subsidiaries or any of their respective Affiliates that is communicated to or obtained by the Person 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 (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 7.02 and 9.02Section 10.02) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgmentmisconduct. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof describing such Default or Event of Default is given to the Administrative Agent by the Company, another Borrower, Borrower or a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any the other Loan DocumentDocuments, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document Agreement or any other agreement, instrument or document, document or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinin 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon upon, and shall not incur any liability for relying upon, any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur may act upon any liability for relying thereonsuch statement prior to written confirmation thereof. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, Loan that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of CreditLoan. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), 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 hereunder and or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying give notice of its resignation to the Lenders, the Issuing Lenders and the CompanyBorrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the consent of the Company (not to be unreasonably withheld or delayed)Borrower, to appoint a successor, which shall be a commercial bank with an office in the United States of America, or an Affiliate of any such commercial bank with an office in the United States of America. 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bankmeeting the qualifications set forth above; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b2) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly directly, until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent hereunderas provided for above in this paragraph. If the Administrative Agent is a Defaulting Lender pursuant to clause (c) 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 appoint a successor as provided for above in this paragraph. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date and (1) the removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (2) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this paragraph. The successor shall be consented to by the Borrower at all times other than during the existence of an Event of Default (which consent of the Borrower shall not be unreasonably withheld, delayed or conditioned). Upon the acceptance of its a successor’s appointment as Administrative Agent hereunder by a successorhereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) or removed Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder and or under the other Loan DocumentsDocuments (if not already discharged therefrom as provided above in this paragraph). The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 10.03 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it the retiring or removed Administrative Agent was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or Agent, any other Lender or the Arranger or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or Agent, any other Lender or the Arranger or any other of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Lenders hereby irrevocably authorize the Administrative Agent Agent, at its option and in its discretion, to release any Subsidiary Guarantor from its obligations under such Subsidiary Guarantor’s Subsidiary Guaranty (a) if such Person ceases to exist or to be a Subsidiary (or substantially contemporaneously with such release will cease to exist or to be a Subsidiary), in each case as a result of a transaction permitted hereunder, or (b) otherwise in accordance with Section 4.06(b) of the relevant Subsidiary Guaranty. Anything herein to the contrary notwithstanding, none of the Persons named as the Arranger on the cover page hereof shall not be responsible or have any liability forpowers, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this AgreementAgreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent or a Lender hereunder.
Appears in 1 contract
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, JPM (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers any Loan Party or any Subsidiary subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and without acknowledge that the Administrative Agent shall not be under any duty obligation to account therefor provide such information to the Lendersthem. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is continuingintended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powerspower, except discretionary rights and powers that are expressly contemplated hereby or by the other Loan Documents that and which the Administrative Agent is required to exercise in writing as directed in writing by the Required Lenders, Required Revolving Lenders, Required Term A Lenders or Required Pro Rata Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance Requirements of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Top Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders, Required Revolving Lenders, Required Term A Lenders and/or Required Pro Rata Lenders (or such other number or percentage of the Lenders as shall be is necessary, or as the Administrative Agent shall believe believes in good faith shall be necessary, under the relevant circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct misconduct, as determined by the final judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyTop Borrower or any Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any 149 Loan Document, (iii) the performance or observance of any of the covenantscovenant, agreements agreement or other terms term or conditions condition set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the Administrative Agent pursuant to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere hereinin 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 uponor (vii) any property, and shall not incur book or record of 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender Loan Party or any Issuing LenderAffiliate thereof. Each Lender agrees that, except with the written consent of the Administrative Agent may presume that such condition is satisfactory to such Lender Agent, it will not take any enforcement action hereunder or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by Document, accelerate the Obligations under any Loan Document, or through exercise any one right that it might otherwise have under applicable Requirements of Law or more sub-agents appointed by otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section 363 of the Administrative AgentBankruptcy Code or any other similar Disposition of Collateral. The Administrative Agent and any such sub-agent Notwithstanding the foregoing, a Lender may perform any and all of its duties and exercise take action to preserve or enforce its rights and powers against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations held by or through their respective Related Partiessuch Lender, including the filing of a proof of claim in a case under the Bankruptcy Code. The exculpatory provisions of this Article shall apply to any such sub-agent and Notwithstanding anything to the Related Parties contrary contained herein or in any of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article Borrowers, the Administrative Agent and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it was acting as being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms hereof, and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges rights and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or remedies under the other Loan Documents may be exercised solely by the Administrative Agent, and (cii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the successor Xxxxxxx Xxxxxx Administrative Agent, as agent for and representative of the Secured Parties, shall issue letters of credit in substitution be entitled, for the Letters purpose of Creditbidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, if any, outstanding to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender Disposition and each Issuing Lender acknowledges that it has, independently and without reliance upon (B) the Administrative Agent or any other Lender may be the purchaser or licensor of all or any portion of their Related Parties and based on such documents and information Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as it has deemed appropriate, made its own credit analysis and decision to enter into such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not Lenders hereby irrevocably authorizes (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is and by entering into a Disqualified Institution or (y) have any liability Hedge Agreement with respect to or arising out any Secured Hedging Obligation and/or by entering into documentation in connection with any Banking Services Obligation, each of any assignment or participation of Loans, or disclosure of confidential information, the other Secured Parties hereby authorizes and shall be deemed to any Disqualified Institution. It is agreed that authorize) the Syndication Administrative Agent, on behalf of all Secured Parties to take any of the Co-Documentation Agents and following actions upon the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.instruction of the Required Lenders:
Appears in 1 contract
Samples: First Lien Credit Agreement (Cotiviti Holdings, Inc.)
The Administrative Agent. Each of the Lenders and Issuing Lenders hereby irrevocably appoints Citibank, Credit Suisse (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers any Loan Party or any Subsidiary subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and without acknowledge that the Administrative Agent shall not be under any duty obligation to account therefor provide such information to the Lendersthem. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred or Event of Default exists and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is continuingintended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powerspower, except discretionary rights and powers that are expressly contemplated hereby or by the other Loan Documents that and which the Administrative Agent is required to exercise in writing as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance Requirements of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings or the Company Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Parties 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 is necessary, or as the Administrative Agent shall believe believes in good faith shall be necessary, under the relevant circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct as determined by the final judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyBorrower or any Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenantscovenant, agreements agreement or other terms term or conditions condition set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere hereinin 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 uponor (vii) any property, and shall not incur book or record of 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender Loan Party or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunderthereof. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement hereof relating to Disqualified InstitutionsInstitutions by any other Lender. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any other Lender or Participant participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified InstitutionInstitution by any other Lender. It Each Lender agrees that, except with the written consent of the Administrative Agent, it will not take any enforcement action hereunder or under any other Loan Document, accelerate the Obligations under any Loan Document, or exercise any right that it might otherwise have under applicable Requirements of Law or otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section 363 of the Bankruptcy Code or any other similar Disposition of Collateral, whether under other Debtor 125 Relief Laws or otherwise. Notwithstanding the foregoing, a Lender may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations held by such Lender, including the filing of a proof of claim in a case under the Bankruptcy Code. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Syndication Administrative Agent, on behalf of the Co-Documentation Agents Secured Parties in accordance with the terms hereof and all powers, rights and remedies under the Joint Lead Arrangers shallother Loan Documents may be exercised solely by the Administrative Agent, and (ii) in their capacities the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent, as suchagent for and representative of the Secured Parties, 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 sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have no duties any rights in connection with the management or responsibilities release of any Collateral or of the obligations of any Loan Party under this Agreement.. Each of the Lenders hereby irrevocably authorizes (and by entering into a Hedge Agreement with respect to any Secured Hedging Obligation and/or by entering into documentation in connection with any Banking Services Obligation, each of the other Secured Parties hereby authorizes and shall be deemed to authorize) the Administrative Agent, on behalf of all Secured Parties to take any of the following actions upon the instruction of the Required Lenders:
Appears in 1 contract
Samples: Term Loan Agreement (Daseke, Inc.)
The Administrative Agent. In order to expedite the transactions contemplated by this Agreement, JPMorgan is hereby appointed to act as Administrative Agent on behalf of the Lenders. Each of the Lenders and Issuing Lenders hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such such Person and its Affiliates may accept deposits from, lend money 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 Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuingcontinuing (and it is understood and agreed that the use of the term “agent” (or any other similar term) herein or in any other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties), (b) the Administrative Agent shall not have any no duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counselopinion, may could expose the Administrative Agent it to liability or that is 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 Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, law and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall have any no duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries Subsidiary that is communicated to or obtained by the 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, or as the Administrative Agent shall believe in good faith shall be necessary, necessary under the circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own bad faith, 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 nonappealable judgment). The Administrative Agent shall not be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by the CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of in any DefaultLoan Document, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, document or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinin 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, sent or otherwise authenticated by the proper PersonPerson (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 rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to have been be made by the proper PersonPerson (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the maker thereof), and shall not incur may act upon any liability for relying thereonsuch statement prior to receipt of written confirmation thereof. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, Loan that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior sufficiently in advance to the making of such Loan or the issuance, extension, renewal or increase of such Letter of CreditLoan. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agentit. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs and the provisions of Section 9.03 shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the rightright (in consultation with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII) with the consent of of, the Company (Borrower, which consent shall not to be unreasonably withheld or delayed), withheld) 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 (but shall not be obligated toin consultation with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (Borrower, which shall not to be unreasonably withheld or delayed)withhold such consent and which shall, if the retiring Administrative Agent shall so request, designate and approve a successor Administrative Agent) on behalf of the Lenders, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documentshereunder. The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the an Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or Document, any related agreement or any document furnished hereunder or thereunder. The Administrative None of the institutions named as Syndication Agent, Documentation Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with Joint Lead Arranger and Joint Bookrunner on the provisions cover page of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no any duties or responsibilities of any kind under this Agreement.. Each Lender represents and warrants, as of the date such Person became a Lender party hereto, to, and from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, that at least one of the following is and will be true: (i) such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans or the Commitments,
Appears in 1 contract
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, UBS (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers any Loan Party or any Subsidiary subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and without acknowledge that the Administrative Agent shall not be under any duty obligation to account therefor provide such information to the Lendersthem. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law; it being understood that such term is used merely as a matter of market custom, and is continuingintended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powerspower, except discretionary rights and powers that are expressly contemplated hereby or by the other Loan Documents that and which the Administrative Agent is required to exercise in writing as directed in writing by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawlaws, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the relevant circumstances as 147 provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct misconduct, as determined by the final judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyBorrower or any Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenantscovenant, agreements agreement or other terms term or conditions condition set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere hereinin any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative AgentAgent or (vii) any property, book or record of any Loan Party or any Affiliate thereof. The Administrative Agent shall be entitled to rely upon, and shall not incur If 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making Lender acquires knowledge of a LoanDefault or Event of Default, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, it shall promptly notify the Administrative Agent may presume that such condition is satisfactory to such and the other Lenders thereof in writing. Each Lender or such Issuing Lender unless agrees that, except with the written consent of the Administrative Agent shall have received notice to the contrary from such Lender Agent, it will not take any enforcement action hereunder or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by Document, accelerate the Obligations under any Loan Document, or through exercise any one right that it might otherwise have under applicable law or more sub-agents appointed by otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section 363 of the Administrative AgentBankruptcy Code or other similar Dispositions of Collateral. The Administrative Agent and any such sub-agent Notwithstanding the foregoing, however, a Lender may perform any and all of its duties and exercise take action to preserve or enforce its rights and powers against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations held by or through their respective Related Partiessuch Lender, including the filing of a proof of claim in a case under the Bankruptcy Code. The exculpatory provisions of this Article shall apply to any such sub-agent and Notwithstanding anything to the Related Parties contrary contained herein or in any of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions Borrower, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of this Article the Collateral or to enforce the Loan Guaranty; it being understood and Section 9.03 shall continue in effect for agreed that all powers, rights and remedies hereunder may be exercised solely by, the benefit of such retiring Administrative Agent, its sub-agents and their respective Related on behalf of the Secured Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent accordance with the terms hereof and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges rights and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or remedies under the other Loan Documents may be exercised solely by, the Administrative Agent, and (cii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the successor Xxxxxxx Xxxxxx Administrative Agent, as agent for and representative of the Secured Parties, shall issue letters of credit in substitution be entitled, for the Letters purpose of Creditbidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, if any, outstanding to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender Disposition and each Issuing Lender acknowledges that it has, independently and without reliance upon (B) the Administrative Agent or any other Lender may be the purchaser or licensor of any or all of their Related Parties and based on such documents and information Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as it has deemed appropriate, made its own credit analysis and decision to enter into such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not Lenders hereby irrevocably authorizes (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is and by entering into a Disqualified Institution or (y) have any liability Hedge Agreement with respect to or arising out any Secured Hedging Obligation and/or by entering into documentation in connection with any Banking Services Obligation, each of any assignment or participation of Loans, or disclosure of confidential information, the other Secured Parties hereby authorizes and shall be deemed to any Disqualified Institution. It is agreed that 148 authorize) the Syndication Administrative Agent, on behalf of all Secured Parties to take any of the Co-Documentation Agents and following actions upon the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.instruction of the Required Lenders:
Appears in 1 contract
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, the entity named as Administrative Agent, Agent in the heading of this Agreement and its successors to act on its behalf serve as the Administrative Agent hereunder under this Agreement and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except 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 Person and its Affiliates may accept deposits from, lend money 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 119 Company or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents with respect to the consent rights of the Company relating to a successor agent as set forth belowAdministrative Agent, the provisions of this Article are solely for the benefit of and the Administrative Agent’s duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (a) the Lenders, and the Issuing Lenders and the Borrowers Administrative Agent shall not have rights as be subject to any fiduciary or other implied duties, regardless of whether a third party beneficiary of any of such provisions. It Default has occurred and is continuing (and 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 law, and that such term is used as a matter of market custom, custom and is intended to create or reflect only an administrative relationship between contracting parties. 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 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, 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 Borrowers or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent (a) 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 powerspower, 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 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 Sections 7.02 and 9.02the Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counselopinion, may could expose the Administrative Agent to liability or that is 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 Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawlaw, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and the Administrative Agent shall not be liable for the failure to disclose, any information relating to the Company Company, any Subsidiary or any of its Subsidiaries other Affiliate thereof that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall to be necessary, under the circumstances as provided in Sections 7.02 and 9.02the Loan Documents) or in the absence of its own bad faith, gross negligence or willful misconduct as (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by the Company, another Borrower, a any Lender or an any Issuing Lender. The 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith therewith, including with respect to the existence and the aggregate amount of any Designated Cash Management Obligations or therewithDesignated Hedge Obligations at any time, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein in any Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinin any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. The Administrative Agent neither warrants nor accepts responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to any interest rate used in this Agreement or with respect to any comparable or successor rate thereto, or replacement rate therefor (except such as shall result from the bad faith, gross negligence or willful misconduct of the Administrative Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment). 120 The Administrative Agent shall be entitled to rely uponrely, and shall not incur any liability for relying uponrelying, 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, sent or otherwise authenticated by the proper PersonPerson (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 have been be made by the proper PersonPerson (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 thereonsuch statement prior to receipt of written confirmation thereof. In determining compliance with any condition hereunder to the making of a Loan, Loan or the issuance, extension, renewal amendment or increase extension of a any Letter of Credit, Credit that by its terms must be fulfilled to the satisfaction of a Lender or any an Issuing LenderBank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender Bank, as applicable, unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender Bank, as applicable, prior to the making of such Loan or the issuance, extension, renewal or increase of such event as to such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersCompany), independent accountants and other experts selected by itit with reasonable care, 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 For all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions purposes of this Article shall apply to any such sub-agent Agreement and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.:
Appears in 1 contract
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints CitibankJPMorgan Chase Bank, N.A. as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the The provisions of this Article are solely for the benefit of the Administrative Agent, Agent and the Lenders, Lenders (including the Swingline Lender and the Issuing Lenders Banks), and neither the Borrowers Company nor any other Loan Party shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” as used 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 Lawlaw. Instead Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The Person 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 Agent, and 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 such bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of business with the Borrowers Company or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lendershereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), provided that and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall be necessary, necessary under the circumstances as provided in Sections 7.02 and Section 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 final and nonappealable judgmentjurisdiction. 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 CompanyCompany or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of in any DefaultLoan Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, document or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinin 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, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersCompany), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Subject to the appointment and acceptance of a successor Administrative Agent shall not be responsible for as provided in this paragraph, the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Banks and the Company. Upon any such resignation, the Required Lenders shall have the right, right (with the consent of the Company (such consent not to be unreasonably withheld or delayed), provided that no consent of the Company shall be required if an Event of Default under clauses (a), (b), (h), (i) or (j) of Article VII 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 (but shall not be obligated to)may, on behalf of the Lenders and the Issuing LendersBanks, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documentshereunder. The fees payable by the Company any Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company such Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all Each Lender acknowledges and agrees that the rights, powers, privileges extensions of credit made hereunder are commercial loans and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit and not investments in substitution for the Letters of Credit, if any, outstanding at the time of such succession a business enterprise or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Creditsecurities. Each Lender and each Issuing Lender acknowledges 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 of the credit facilities evidenced by this Agreement or any other Lender or any of and their respective Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this AgreementAgreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender and each Issuing Lender also acknowledges that it willshall, independently and without reliance upon the Administrative Agent Agent, any arranger of the credit facilities evidenced by this Agreement or any amendment thereof or any other Lender or any other and their respective Related Parties 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 Company and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunderthereunder and in deciding whether or to the extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder. None of the Lenders, if any, identified in this Agreement as a Syndication Agent or Co-Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Syndication Agent or Co-Documentation Agents, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph. 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 not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality exclusive right on behalf of the foregoing, Lenders to enforce the Administrative Agent shall not (x) be obligated payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out the terms of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Hillenbrand, Inc.)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks, each, on behalf of itself and its applicable Affiliates and in their respective capacities as such and as Hedge Banks and/or Cash Management Banks, as applicable, hereby irrevocably appoints CitibankJPMorgan Chase Bank, N.A. (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers any Loan Party or any Subsidiary subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and without acknowledge that the Administrative Agent shall not be under any duty obligation to account therefor provide such information to the Lendersthem. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, Documents and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (a) the Administrative Agent (a) shall not be subject to any fiduciary or other implied dutiesduty, regardless of whether any Default or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligation arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a Default has occurred matter of market custom, and is continuingintended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powerspower, except discretionary rights and powers that are expressly contemplated hereby or by the other Loan Documents that and which the Administrative Agent is required to exercise as directed in writing by the Required Lenders, Required Term A Lenders, Required Pro Rata Lenders, Required Term B Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance Requirements of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Administrative Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders, Required Term A Lenders, Required Pro Rata Lenders, Required Term B Lenders or Required Revolving Lenders (or such other number or percentage of the 173 Lenders as shall be is necessary, or as the Administrative Agent shall believe believes in good faith shall be necessary, under the relevant circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct misconduct, as determined by a final and non-appealable judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyAdministrative Borrower or any Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenantscovenant, agreements agreement or other terms term or conditions condition set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the Administrative Agent pursuant to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere hereinin 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 uponor (vii) any property, and shall not incur book or record of 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender Loan Party or any Issuing LenderAffiliate thereof. Each Lender agrees that, except with the written consent of the Administrative Agent may presume that such condition is satisfactory to such Lender Agent, it will not take any enforcement action hereunder or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by Document, accelerate the Obligations under any Loan Document, or through exercise any one right that it might otherwise have under applicable Requirements of Law or more sub-agents appointed by otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section 363 of the Administrative AgentBankruptcy Code or any other similar Disposition of Collateral. The Administrative Agent and Notwithstanding the foregoing, any such sub-agent Lender may perform any and all of its duties and exercise take action to preserve or enforce its rights and powers against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations held by or through their respective Related Partiessuch Lender, including the filing of a proof of claim in a case under the Bankruptcy Code. The exculpatory provisions of this Article shall apply to any such sub-agent and Notwithstanding anything to the Related Parties contrary contained herein or in any of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions Borrowers, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of this Article the Collateral or to enforce the Loan Guaranty; it being understood and Section 9.03 shall continue agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative Agent on behalf of the Secured Parties in effect for accordance with the benefit of such retiring terms hereof, and all powers, rights and remedies under and in connection with the Loan Documents may be exercised solely by the 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 (i) it was acting as Administrative Agent and (ii) after such resignation for as long as in the event of a foreclosure by the Administrative Agent on any of them continues the Collateral pursuant to act a public or private sale or in any capacity hereunder or under the other Loan Documents, including in respect event of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, other Disposition (including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon 363 of the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting LenderBankruptcy Code), (aA) such successor shall succeed to the Administrative Agent, as agent for and become vested with all representative of the rightsSecured Parties, powersshall be entitled, privileges for the purpose of bidding and duties making settlement or payment of the retiring Issuing Xxxxxxpurchase price for all or any portion of the Collateral sold at any such sale, (b) to use and apply all or any portion of the retiring Issuing Lender shall be discharged from all Obligations as a credit on account of their respective duties and obligations hereunder or under the other Loan Documents purchase price for any Collateral payable by the Administrative Agent at such Disposition and (cB) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender may be the purchaser or licensor of all or any portion of their Related Parties and based on such documents and information Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as it has deemed appropriate, made its own credit analysis and decision to enter into such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not Lenders hereby irrevocably authorizes (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is and by entering into a Disqualified Institution or (y) have any liability Hedge Agreement with respect to or arising out any Secured Hedging Obligation and/or by entering into documentation in connection with any Banking Services Obligation, each of any assignment or participation the other Secured Parties hereby authorizes and 174 shall be deemed to authorize) the Administrative Agent, on behalf of Loans, or disclosure of confidential informationall Secured Parties, to take any Disqualified Institution. It is agreed that of the Syndication Agent, following actions upon the Co-Documentation Agents and instruction of the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.Required Lenders:
Appears in 1 contract
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, Barclays (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers any Loan Party or any Subsidiary subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and without acknowledge that the Administrative Agent shall not be under any duty obligation to account therefor provide such information to the Lendersthem. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law; it being understood that such term is used merely as a matter of market custom, and is continuingintended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powerspower, except discretionary rights and powers that are expressly contemplated hereby or by the other Loan Documents that and which the Administrative Agent is required to exercise in writing as directed in writing by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawlaws, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the relevant circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct misconduct, as determined by the final judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyBorrower or any Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenantscovenant, agreements agreement or other terms term or conditions condition set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere hereinin any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative AgentAgent or (vii) any property, book or record of any Loan Party or any Affiliate thereof. The Administrative Agent shall be entitled to rely upon, and shall not incur If 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making Lender acquires knowledge of a LoanDefault or Event of Default, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, it shall promptly notify the Administrative Agent may presume that such condition is satisfactory to such and the other Lenders thereof in writing. Each Lender or such Issuing Lender unless agrees that, except with the written consent of the Administrative Agent shall have received notice to the contrary from such Lender Agent, it will not take any enforcement action hereunder or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by Document, accelerate the Obligations under any Loan Document, or through exercise any one right that it might otherwise have under applicable law or more sub-agents appointed by otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section 363 of the Administrative AgentBankruptcy Code or other similar Dispositions of Collateral. The Administrative Agent and any such sub-agent Notwithstanding the foregoing, however, a Lender may perform any and all of its duties and exercise take action to preserve or enforce its rights and powers against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations held by or through their respective Related Partiessuch Lender, including the filing of a proof of claim in a case under the Bankruptcy Code. The exculpatory provisions of this Article shall apply to any such sub-agent and Notwithstanding anything to the Related Parties contrary contained herein or in any of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions Borrower, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of this Article the Collateral or to enforce the Loan Guaranty; it being understood and Section 9.03 shall continue in effect for agreed that all powers, rights and remedies hereunder may be exercised solely by, the benefit of such retiring Administrative Agent, its sub-agents and their respective Related on behalf of the Secured Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent accordance with the terms hereof and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges rights and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or remedies under the other Loan Documents may be exercised solely by, the Administrative Agent, and (cii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the successor Xxxxxxx Xxxxxx Administrative Agent, as agent for and representative of the Secured Parties, shall issue letters of credit in substitution be entitled, for the Letters purpose of Creditbidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, if any, outstanding to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender Disposition and each Issuing Lender acknowledges that it has, independently and without reliance upon (B) the Administrative Agent or any other Lender may be the purchaser or licensor of any or all of their Related Parties and based on such documents and information Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as it has deemed appropriate, made its own credit analysis and decision to enter into such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not Lenders hereby irrevocably authorizes (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is and by entering into a Disqualified Institution or (y) have any liability Hedge Agreement with respect to or arising out any Secured Hedging Obligation and/or by entering into documentation in connection with any Banking Services Obligation, each of any assignment or participation of Loans, or disclosure of confidential information, the other Secured Parties hereby authorizes and shall be deemed to any Disqualified Institution. It is agreed that authorize) the Syndication Administrative Agent, on behalf of all Secured Parties to take any of the Co-Documentation Agents and following actions upon the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.instruction of the Required Lenders:
Appears in 1 contract
The Administrative Agent. Each of the Lenders and each of the Issuing Lenders Banks hereby irrevocably appoints Citibank, the entity named as the Administrative Agent, Agent to act on its behalf as the Administrative 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 and thereofof the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to The bank serving as the consent Administrative Agent hereunder shall have the same rights of and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the Company relating to a successor agent same as set forth below, the provisions of this Article are solely for the benefit of though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the Lenders, financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Lenders and the Borrowers Banks. The Administrative Agent shall not have rights as any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a third party beneficiary of any of such provisions. It Default has occurred and is continuing (and 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 law, and that such term is used as a matter of market custom, custom and is intended to create or reflect only an administrative relationship between contracting parties. 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 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, 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 Borrowers or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent (a) 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 and by the other Loan Documents that the Administrative Agent is required to exercise in writing as directed in writing 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 Sections 7.02 and Section 9.02), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counselopinion, may could expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawlaw, and (c) shall not, except as expressly set forth herein and in herein, the other Loan Documents, Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries or other Affiliates that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall to be necessary, under the circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct as determined by unless a court of competent jurisdiction shall have determined by final and nonappealable judgmenta final, non-appealable judgment that the Administrative Agent was grossly negligent or acted with willful misconduct in taking or not taking any such action. 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Defaultherein, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, signed or sent or otherwise authenticated by the proper PersonPerson (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 upon any statement made to it orally or by telephone and believed by it to have been be made by the proper PersonPerson (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 any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any an Issuing LenderBank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender Bank prior to the making of such Loan or the issuance, extension, renewal or increase issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article 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 Facility as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Banks and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, with right to appoint a successor approved by the consent of the Company Borrower (such approval not to be unreasonably withheld withheld, conditioned or delayed), to appoint a successor; provided that no approval of the Borrower shall be necessary if an Event of Default has occurred and is continuing. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (but shall not be obligated to)may, on behalf of the Lenders and the Issuing LendersBanks, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor . If the Person serving as the Administrative Agent be becomes a Defaulting Lender or Disqualified Institution 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 (y) if the such Person, remove such Person as Administrative Agent (the effectiveness thereof being subject to the following sentence) and appoint a successor in accordance with the immediately preceding paragraph. If no successor shall notify have been so appointed by the Company Required Lenders and the Lenders that no qualifying Person has shall have accepted such appointmentappointment within 30 days after delivery of such notice (or such earlier day as shall be agreed to by the Required Lenders) (the “Removal Effective Date”), then such resignation removal shall nonetheless become effective in accordance with such notice and on the Removal Effective Date, whereupon, on the date of effectiveness of such removal, (a) the retiring removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed the Required Lenders shall succeed to and become vested with all the retiring rights, powers, privileges and duties of the removed Administrative Agent, provided that (i) all payments, communications and determinations provided payments required to be made by, hereunder or under any other Loan Document to or through the Administrative Agent for the account of any Person other than the Administrative Agent shall instead be made by 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 Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunderBank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documentshereunder. The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentsor removal hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank or removal of JPMorgan Chase Bank, N.A. or its successor as Administrative Agent pursuant to this Section shall also constitute the resignation or removal of JPMorgan Chase Bank, N.A. or its resignation successor as an Issuing Lender. If Citibank resigns as an Issuing Swingline Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements any successor Administrative Agent appointed pursuant to this Section 2.04(e)shall, upon its acceptance of such appointment, become the successor Swingline Lender for all purposes hereunder. Upon In such event, the appointment Borrower shall prepay any outstanding Swingline Loans (together with payment of all accrued and unpaid interest thereon) made by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall retiring or removed Administrative Agent in all cases be a Lender other than a Defaulting its capacity as Swingline Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or Issuing Bank, or any of their 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 Lender Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or Issuing Bank, or any other their 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 Document, any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability forEach Lender, by delivering its signature page to this Agreement, 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 any duty acknowledged receipt of, and consented to ascertainand approved, inquire intoeach Loan Document and each other document required to be delivered to, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoingbe approved by or satisfactory to, the Administrative Agent shall not (x) be obligated or the Lenders on the Effective Date that has been made available by the Administrative Agent to ascertain, monitor the Lenders. Each Arranger and each institution identified as a “Syndication Agent” or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability “Documentation Agent” with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, this Agreement shall have no obligations or duties or responsibilities whatsoever in such capacity under this AgreementAgreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity.
Appears in 1 contract
Samples: Assignment and Assumption (Marathon Petroleum Corp)
The Administrative Agent. Each of the Lenders Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, and the Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect In addition, to the consent rights extent required under the laws of any jurisdiction other than the United States of America, each of the Company relating Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, and the Issuing Banks hereby grants to a successor agent as set forth below, the Administrative Agent any required powers of attorney to execute any Collateral Document governed by the laws of such jurisdiction on such Lender’s or such Issuing Bank’s behalf. The provisions of this Article are solely for the benefit of the Administrative Agent, Agent and the Lenders, Lenders (including the Swingline Lender and the Issuing Lenders Banks), and neither the Borrowers Borrower nor any other Loan Party shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” as used 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 Lawlaw. Instead Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The Person 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 Agent, and 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 such bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lendershereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), provided that and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall be necessary, necessary under the circumstances as provided in Sections 7.02 and Section 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 final and nonappealable judgmentjurisdiction. 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of in any DefaultLoan Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other 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 IV or elsewhere hereinin 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, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Subject to the appointment and acceptance of a successor Administrative Agent shall not be responsible for as provided in this paragraph, the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Banks and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the consent of the Company (not to be unreasonably withheld or delayed)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 (but shall not be obligated to)may, on behalf of the Lenders and the Issuing LendersBanks, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documentshereunder. The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all Each Lender acknowledges and agrees that the rights, powers, privileges extensions of credit made hereunder are commercial loans and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit and not investments in substitution for the Letters of Credit, if any, outstanding at the time of such succession a business enterprise or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Creditsecurities. Each Lender and each Issuing Lender further acknowledges 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 any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this AgreementAgreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender and each Issuing Lender also acknowledges that it willshall, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunderthereunder and in deciding whether or to the extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder. None of the Lenders, if any, identified in this Agreement as a Co-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 Co-Syndication Agents or Co-Documentation Agents, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall not have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement. In its capacity, the Administrative Agent is a “representative” of the Secured Parties within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Administrative Agent to enter into each of the 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 responsible 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 have appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Secured Parties. The Lenders hereby authorize the Administrative Agent, at its option and in its discretion, to release any liability forLien granted to or held by the Administrative Agent upon any Collateral (i) as described in Section 9.02(d); (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 have any duty consented to ascertain, inquire into, monitor in writing by the Required Lenders or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality all of the foregoingLenders, as applicable, and upon at least five (5) Business Days’ prior written request by the Borrower to the Administrative Agent, the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for the benefit of the Secured Parties herein or pursuant hereto upon the Collateral that was sold or transferred; provided, however, that (i) the Administrative Agent 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 (xii) such release shall not in any manner discharge, 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, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the Collateral. Any execution and delivery by the Administrative Agent of documents in connection with any such release shall be obligated without recourse to ascertainor warranty by the Administrative Agent. Furthermore, monitor if requested in writing by the Borrower, the Administrative Agent may elect and is hereby authorized, in its sole determination, to subordinate all or inquire as any portion of any lien or security interest it holds in the Loan Parties’ Killingly, Connecticut facility to whether the Permitted Encumbrance constituting an electrical distribution easement (and related documents) granted to The Connecticut Light and Power Company or its affiliates. In case of the pendency of any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability proceeding with respect to any Loan Party under any Federal, state or arising out foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any assignment Loan or participation any LC Disbursement shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of Loans, whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.otherwise:
Appears in 1 contract
Samples: Credit Agreement (Rogers Corp)
The Administrative Agent. Each of the Lenders Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, and the Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect In addition, to the consent rights extent required under the laws of any jurisdiction other than the United States of America, each of the Company relating Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, and the Issuing Banks hereby grants to a successor agent as set forth below, the Administrative Agent any required powers of attorney to execute any Collateral Document governed by the laws of such jurisdiction on such Lender’s or such Issuing Bank’s behalf. The provisions of this Article are solely for the benefit of the Administrative Agent, Agent and the Lenders, Lenders (including the Swingline Lender and the Issuing Lenders Banks), and neither the Borrowers Borrower nor any other Loan Party shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” as used 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 Lawlaw. Instead Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The Person 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 Agent, and 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 such bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lendershereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), provided that and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall be necessary, necessary under the circumstances as provided in Sections 7.02 and Section 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 final and nonappealable judgmentjurisdiction. 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of in any DefaultLoan Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other 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 IV or elsewhere hereinin 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, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Subject to the appointment and acceptance of a successor Administrative Agent shall not be responsible for as provided in this paragraph, the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.Issuing
Appears in 1 contract
Samples: Credit Agreement (Rogers Corp)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, the entity named as Administrative Agent, Agent in the heading of this Agreement and its successors to act on its behalf serve as the Administrative Agent hereunder under this Agreement and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except 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 Person and its Affiliates may accept deposits from, lend money 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 Company or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents with respect to the consent rights of the Company relating to a successor agent as set forth belowAdministrative Agent, the provisions of this Article are solely for the benefit of and the Administrative Agent’s duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (a) the Lenders, and the Issuing Lenders and the Borrowers Administrative Agent shall not have rights as be subject to any fiduciary or other implied duties, regardless of whether a third party beneficiary of any of such provisions. It Default has occurred and is continuing (and 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 law, and that such term is used as a matter of market custom, custom and is intended to create or reflect only an administrative relationship between contracting parties. 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 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, 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 Borrowers or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent (a) 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 powerspower, 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 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 Sections 7.02 and 9.02the Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counselopinion, may could expose the Administrative Agent to liability or that is 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 Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawlaw, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and the Administrative Agent shall not be liable for the failure to disclose, any information relating to the Company Company, any Subsidiary or any of its Subsidiaries other Affiliate thereof that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall to be necessary, under the circumstances as provided in Sections 7.02 and 9.02the Loan Documents) or in the absence of its own gross negligence or willful misconduct as (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by the Company, another Borrower, a any Lender or an any Issuing Lender. The 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein in any Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinin any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. The Administrative Agent shall be entitled to rely uponrely, and shall not incur any liability for relying uponrelying, 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, sent or otherwise authenticated by the proper PersonPerson (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 have been be made by the proper PersonPerson (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 thereonsuch statement prior to receipt of written confirmation thereof. In determining compliance with any condition hereunder to the making of a Loan, Loan or the issuance, extensionamendment, renewal or increase extension of a any Letter of Credit, Credit that by its terms must be fulfilled to the satisfaction of a Lender or any an Issuing LenderBank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender Bank, as applicable, unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender Bank, as applicable, prior to the making of such Loan or the issuance, extension, renewal or increase of such event as to such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersCompany), independent accountants and other experts selected by itit with reasonable care, 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 and 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 of its their duties and exercise its their rights and powers by or through their respective Related Parties, including, in the case of JPMorgan, through its London branch or through X.X. Xxxxxx Europe Limited. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any of its sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable nonappealable judgment that the Administrative Agent acted with bad faith, gross negligence or willful misconduct in the selection of such sub-agents. The Subject to the terms of 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 Issuing Lenders Banks and the Company. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, with subject to the consent of the Company (not to be unreasonably withheld withheld, conditioned or delayed), ) 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 resignationintent to resign, then the retiring Administrative Agent may (but shall not be obligated to)may, on behalf of the Lenders and the Issuing LendersBanks, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent Agent, which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor . If the Person serving as the Administrative Agent be is a Defaulting Lender or Disqualified Institution pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Company and (y) if such Person remove such Person as the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointmentand, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed subject to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld withheld, conditioned or delayed), ) appoint a successor Administrative Agent hereundersuccessor. Upon the acceptance of its appointment as the Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between by the Company and such successor. After Notwithstanding the foregoing, in the event no successor Administrative Agent’s 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 Company, 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, 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 retiring Administrative Agent for the account of any Person other than the retiring 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 retiring 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 or removal from its capacity as such, the provisions of this Article and Section 9.03 10.03, 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 or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender Bank acknowledges that it has, independently and without reliance upon the Administrative Agent Agent, the Arrangers or any other Lender or Issuing Bank, or any of their 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 Lender 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 other their 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. The Administrative Agent shall not be responsible or have any liability forEach Lender, by delivering its signature page to this Agreement, or delivering its signature page to an Assignment and Assumption or any other document pursuant to which it shall become a Lender hereunder, shall be deemed to have any duty acknowledged receipt of, and consented to ascertainand approved, inquire intoeach Loan Document and each other document required to be delivered to, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoingbe approved by or satisfactory to, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether the Lenders on the Effective Date or the Term Funding Date. In case of the pendency of any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability proceeding with respect to the Company or arising out any Borrowing Subsidiary under any United States (Federal or state) or foreign bankruptcy, insolvency, receivership, winding-up or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any assignment Loan shall then be due and payable as herein expressed or participation by declaration or otherwise and irrespective of Loans, whether the Administrative Agent shall have made any demand on the Company or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents Borrowing Subsidiary) shall be entitled and the Joint Lead Arrangers shall, empowered (but not obligated) by intervention in their capacities as such, have no duties such proceeding or responsibilities under this Agreement.otherwise:
Appears in 1 contract
Samples: Credit Agreement (Trimble Inc.)
The Administrative Agent. Each of the Lenders and the Issuing Lenders hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as 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 and or thereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Lenders, and the Issuing Lenders and the Borrowers no Borrower shall not have any rights as a third third-party beneficiary of or obligations pursuant to 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 Lawlaw. 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 Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent Agent, and the term “Lender” or “Lenders” shall, 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, own securities of, act as the financial advisor or in any other advisory capacity for for, and generally engage in any kind of business with the Borrowers Company or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 Credit Agreement 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 in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action at the direction of the requisite Lenders hereunder that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Lawlaw, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and or in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries the Group Members that is communicated to or obtained by the 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, or as the Administrative Agent shall believe in good faith shall be necessary, necessary under the circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction by in a final and nonappealable 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 CompanyCompany or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of in any Defaultother Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition condition, if any, hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any an Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Credit Agreement The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative AgentAgent (and which may include any of its Affiliates). The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of the preceding paragraphs of this Article Section shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent (it being understood that each such sub-agent, by agreeing to act as a sub-agent hereunder, shall not be liable for any action taken or not taken by it in such capacity in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable judgment)), and shall apply to their respective activities in connection with the syndication of the credit facilities Facility provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the consent of the Company (not to be unreasonably withheld or delayed)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 may (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada York or an Affiliate of any such bank. If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Company and such Person, remove such Person as Administrative Agent and, in consultation with the Company, appoint a successor; provided that (x) in if no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution shall have been so appointed by the Required Lenders and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has have accepted such appointmentappointment within 30 days (or such earlier day as shall be agreed by the Required Lenders), then such resignation removal shall nonetheless become effective in accordance on such 30th day (or such earlier day as shall be agreed by the Required Lenders). Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with such notice all the rights, powers, privileges and (a) duties of the retiring or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring or removed Administrative Agent), and the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) Documents. Upon the retirement or removal of the Administrative Agent hereunder, except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly directly, until such time time, if any, as the Administrative Agent or Required Lenders appointLenders, with the consent of the Company (not to be unreasonably withheld or delayed)as applicable, appoint a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documentsfor above. The Credit Agreement fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentsor removal hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or Document, any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability forNotwithstanding anything herein to the contrary, or have any duty to ascertainthe Joint Lead Arrangers, inquire into, monitor or enforce, compliance with the provisions Syndication Agents and the Documentation Agents named on the cover page of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities liabilities under this Agreement, except in their capacity, if any, as Lenders.
Appears in 1 contract
Samples: Credit Agreement (NYSE Euronext)
The Administrative Agent. Each of the Lenders and Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf the entity named as the Administrative Agent hereunder in the heading of this Agreement and its successors to serve as administrative agent 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 and thereofhereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to The Person serving as the consent Administrative Agent hereunder shall have the same rights of and powers in its capacity as a Lender, an Issuing Bank or a Swingline Lender as any other Lender, Issuing Bank or Swingline Lender and may exercise the Company relating to a successor agent same as set forth below, the provisions of this Article are solely for the benefit of though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any of its Subsidiaries or other Affiliates as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders, and the Issuing Lenders and the Borrowers Banks or Swingline Lenders. The Administrative Agent shall not have rights as 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 third party beneficiary of any of such provisions. It Default has occurred and is continuing (and 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 law, and that such term is used as a matter of market custom, custom and is intended to create or reflect only an administrative relationship between contracting parties. 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 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, 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 Borrowers or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent (a) 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 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 Sections 7.02 and 9.02the Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counselopinion, may could expose the Administrative Agent to liability or that is be contrary to any Loan Document or applicable Lawlaw, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law rule or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawregulation, and (c) shall not, except as expressly set forth herein and in herein, the other Loan Documents, Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries or other Affiliates that is communicated to or obtained by the 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, or as the Administrative Agent shall believe in good faith shall to be necessary, under the circumstances as provided in Sections 7.02 and 9.02the Loan Documents) or in the absence of its own gross negligence or willful misconduct as misconduct, with such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by the CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithherewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein in any Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, signed or sent or otherwise authenticated by the proper 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 have been be made by the proper Person, and shall not incur may act upon any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender statement prior to the making receipt of such Loan or the issuance, extension, renewal or increase of such Letter of Creditwritten confirmation thereof. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent; provided that, other than in the case of any such sub-agent that is an Affiliate of the Administrative Agent, the Administrative Agent shall provide prompt written notice of such appointment to the Borrower. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Subject to the appointment and acceptance of a successor Administrative Agent shall not be responsible for as provided in this paragraph, the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Banks and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the consent of the Company (not to be unreasonably withheld or delayed)Borrower, to appoint one of the Lenders a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (but shall not be obligated to)may, on behalf of the Lenders and the Issuing Lenders, appoint, in consultation with the consent Borrower, appoint one of the Company (not to be unreasonably withheld or delayed), Lenders as a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor . If the Administrative Agent be is a Defaulting Lender or Disqualified Institution 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 (y) if the Administrative Agent, remove the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted in its capacity as such appointmentand, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, consultation with the consent of the Company (not to be unreasonably withheld or delayed)Borrower, appoint a successor Administrative Agent hereundersuccessor. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documentshereunder. The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the its benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent Agent, any Issuing Bank or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent Agent, any Issuing Bank or any other Lender Lender, or any other their 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. The Administrative Agent shall not be responsible or have any liability forEach Lender, by delivering its signature page to this Agreement, or delivering its signature page to an Assignment and Acceptance or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have any duty acknowledged receipt of, and consented to ascertainand approved, inquire intoeach Loan Document and each other document required to be delivered to, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoingbe approved by or satisfactory to, the Administrative Agent or the Lenders on the Closing Date. None of the Arrangers, the Syndication Agents or the Documentation Agents shall not have any duties or obligations under this Agreement or any other Loan Document (x) be obligated to ascertainexcept in its capacity, monitor or inquire as to whether any applicable, as a Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) an Issuing Bank), but all such Persons shall have any liability with respect to or arising out the benefit of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreementindemnities provided for hereunder.
Appears in 1 contract
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, RBC (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers any Loan Party or any Subsidiary subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and without acknowledge that the Administrative Agent shall not be under any duty obligation to account therefor provide such information to the Lendersthem. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law; it being understood that such term is used merely as a matter of market custom, and is continuingintended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powerspower, except discretionary rights and powers that are expressly contemplated hereby or by the other Loan Documents that and which the Administrative Agent is required to exercise in writing as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Sections 7.02 and 9.02), Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawlaws, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Lead Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party 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, or as the Administrative Agent shall believe in good faith shall be necessary, under the relevant circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct misconduct, as determined by the final judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyBorrowers or any Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenantscovenant, agreements agreement or other terms term or conditions condition set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction creation, perfection or priority of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to Lien on 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, Collateral or the issuanceexistence, extension, renewal value or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties sufficiency of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.Collateral,
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The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as 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 and or thereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights Each of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, Lenders and the Issuing Lenders Banks hereby irrevocably appoints the Collateral Agent as the collateral agent hereunder and under the Borrowers shall not 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 and authorizes the Collateral Agent to have all the rights and benefits hereunder and thereunder (or any other similar term) with reference 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 Administrative Collateral Agent is not intended to connote any fiduciary by the terms hereof or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead thereof, together with such term is used actions and powers as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting partiesare reasonably incidental thereto. 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requiresindicates, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of banking, trust or other business with any of the Borrowers Obligors (or any Subsidiary or other Affiliate thereof 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 of the Obligors or other Affiliate thereof for services in connection with this Agreement or otherwise without any duty having to account therefor for the same to the other Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and 9.02), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief LawLenders, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the 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, expressly provided for herein or as in the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 7.02 and 9.02other Loan Documents) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgmentmisconduct. 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Defaulttherein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinherein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. 151 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, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one (1) 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 by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Banks and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (Borrower not to be unreasonably withheld or delayed(or, if an Event of Default has occurred and is continuing in consultation with the Borrower), to appoint a successor, which is not a natural person, a Defaulting Lender or a Disqualified Lender. 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’s resignation shall nonetheless become effective (except that in the case of any collateral security held by the Administrative Agent may (but shall not be obligated to), on behalf of the Lenders and or the Issuing Lenders, appoint, with the consent Banks under any of the Company (not Loan Documents, the retiring or removed Administrative Agent shall continue to be unreasonably withheld or delayed), hold such collateral security until such time as a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (xis appointed) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under (2) the other Loan Documents Required Lenders shall perform the duties of the Administrative Agent (and (b) except for any indemnity all payments or other amounts then owed to the retiring Administrative Agent, all payments, and communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly directly) until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent hereunderagent as provided for above in this paragraph. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents(if not already discharged therefrom as provided above in this paragraph). The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.
Appears in 1 contract
Samples: Senior Secured Revolving Credit (Owl Rock Capital Corp)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, the entity named as Administrative Agent, Agent in the heading of this Agreement and its successors to act on its behalf serve as the Administrative Agent hereunder and administrative agent 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect In addition, to the consent rights extent required under the laws of any jurisdiction other than the United States of America, each of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, Lenders and the Issuing Lenders and Banks hereby grants to the Borrowers shall not have rights as a third party beneficiary Administrative Agent any required powers of attorney to execute any Security Document governed by the laws of such provisionsjurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Documents (or any other similar term) Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable Lawlaw. Instead Instead, such term is used as a matter of market custom, custom and is intended to create or reflect only an administrative relationship between contracting parties. The Administrative Agent shall also act as the collateral agent under the Loan Documents, and each of the Lenders and the Issuing Banks hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and 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 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 VIII and Article IX as if set forth in full herein with respect thereto. 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 Agent, and 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 such Person and its Affiliates may accept deposits from, lend money 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 Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent hereunder and without any duty to account therefor to the LendersLenders or the Issuing Banks. The Neither the Administrative Agent nor any Arranger shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent or the Arrangers, as applicable: (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, ; (b) shall not have any duty to take any discretionary action or to 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 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 Sections 7.02 and 9.02the Loan Documents), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counselopinion, may could expose the Administrative Agent to liability or that is be contrary to this Agreement or any other Loan Document or applicable Lawlaw, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law Laws or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, Laws; and (c) shall not, except as expressly set forth herein and in the other Loan Documents, not have any duty to disclose, and shall not be liable for the failure to disclose, to any Lender or any Issuing Bank any credit or other information relating to concerning the Company business, prospects, operations, property, financial and other condition or creditworthiness of any of the Borrower, any Subsidiary or any other Affiliate of any of the foregoing that is communicated to, or in possession of, the Administrative Agent, the Arrangers or any of its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates their Related Parties in any capacity, except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent herein. 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, or as the Administrative Agent shall believe in good faith shall to be necessary, under the circumstances as provided in Sections 7.02 and 9.02the Loan Documents) or in the absence of its own gross negligence negligence, bad faith or willful misconduct as (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by the Company, another Borrower, a Lender or an Issuing Lender. The 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein in this Agreement or therein any other Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement, Agreement or any other Loan Document or any other agreement, instrument or document, (v) the value or the sufficiency of any Collateral or (vvi) the satisfaction of any condition set forth in Article IV or elsewhere hereinin this Agreement or any other Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with satisfaction of any condition hereunder that expressly refers to the making of a Loan, matters described therein being acceptable or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and Notwithstanding anything herein to the Related Parties of contrary, the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be liable for, or be responsible for any loss, cost or expense suffered by the negligence Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield in the absence of its own gross negligence, bad faith or willful misconduct of any sub-agents except (such absence to the extent that be presumed unless otherwise determined by a court of competent jurisdiction determines in by a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayednonappealable judgment), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement hereof relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It The Administrative Agent shall be entitled to rely, 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 in good faith to be genuine and to have been signed or sent or otherwise authenticated by the proper 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 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 (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 may act upon any such statement prior to receipt of written confirmation thereof. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the Administrative Agent may presume that such condition is agreed satisfactory to such Lender or such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. 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 their duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Syndication AgentAdministrative Agent acted with bad faith, gross negligence or willful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Co-Documentation Agents Administrative Agent may resign at any time 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 Issuing Banks and the Joint Lead Arrangers shallBorrower. Upon receipt of any such notice of resignation, in their capacities as suchthe Required Lenders shall have the right, subject to the consent of the Borrower (which consent shall not unreasonably be withheld, conditioned or delayed), to appoint a successor; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing. If no successor shall have no duties or responsibilities under this Agreement.been so appointed by the Required Lenders and shall have accepted such appointment
Appears in 1 contract
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, RBC (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers any Loan Party or any Subsidiary subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and without acknowledge that the Administrative Agent shall not be under any duty obligation to account therefor provide such information to the Lendersthem. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law; it being understood that such term is used merely as a matter of market custom, and is continuingintended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powerspower, except discretionary rights and powers that are expressly contemplated hereby or by the other Loan Documents that and which the Administrative Agent is required to exercise in writing as directed in writing by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Sections 7.02 and 9.02), Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawlaws, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Lead Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the relevant circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct misconduct, as determined by the final judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyBorrowers or any Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenantscovenant, agreements agreement or other terms term or conditions condition set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere hereinin any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative AgentAgent or (vii) any property, book or record of any Loan Party or any Affiliate thereof. The Administrative Agent shall be entitled to rely upon, and shall not incur If 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making Lender acquires knowledge of a LoanDefault or Event of Default, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, it shall promptly notify the Administrative Agent may presume that such condition is satisfactory to such and the other Lenders thereof in writing. Each Lender or such Issuing Lender unless agrees that, except with the written consent of the Administrative Agent shall have received notice to the contrary from such Lender Agent, it will not take any enforcement action hereunder or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by Document, accelerate the Obligations under any Loan Document, or through exercise any one right that it might otherwise have under applicable law or more sub-agents appointed by otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section 363 of the Administrative AgentBankruptcy Code or other similar Dispositions of Collateral. The Administrative Agent and any such sub-agent Notwithstanding the foregoing, however, a Lender may perform any and all of its duties and exercise take action to preserve or enforce its rights and powers against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations held by or through their respective Related Partiessuch Lender, including the filing of a proof of claim in a case under the Bankruptcy Code. The exculpatory provisions of this Article shall apply to any such sub-agent and Notwithstanding anything to the Related Parties contrary contained herein or in any of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions Borrowers, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of this Article the Collateral or to enforce the Loan Guaranty; it being understood and Section 9.03 shall continue in effect for agreed that all powers, rights and remedies hereunder may be exercised solely by, the benefit of such retiring Administrative Agent, its sub-agents and their respective Related on behalf of the Secured Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent accordance with the terms hereof and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges rights and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or remedies under the other Loan Documents may be exercised solely by, the Administrative Agent, and (cii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the successor Xxxxxxx Xxxxxx Administrative Agent, as agent for and representative of the Secured Parties, shall issue letters of credit in substitution be entitled, for the Letters purpose of Creditbidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, if any, outstanding to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender Disposition and each Issuing Lender acknowledges that it has, independently and without reliance upon (B) the Administrative Agent or any other Lender may be the purchaser or licensor of any or all of their Related Parties and based on such documents and information Collateral at any such Disposition. No holder of any Secured Hedging Obligation, Banking Services Obligation or Ancillary Obligation in its respective capacity as it has deemed appropriate, made its own credit analysis and decision to enter into such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not Lenders hereby irrevocably authorizes (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is and by entering into a Disqualified Institution or (y) have any liability Hedge Agreement with respect to or arising out any Secured Hedging Obligation, by entering into documentation in connection with any Banking Services Obligation and/or by entering into any Ancillary Documents in connection with any Ancillary Obligation, each of any assignment or participation of Loans, or disclosure of confidential information, the other Secured Parties hereby authorizes and shall be deemed to any Disqualified Institution. It is agreed that authorize) the Syndication Administrative Agent, on behalf of all Secured Parties to take any of the Co-Documentation Agents and following actions upon the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.instruction of the Required Lenders:
Appears in 1 contract
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as 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 and or thereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights Each of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, Lenders and the Issuing Lenders Banks hereby irrevocably appoints the Collateral Agent as the collateral agent hereunder and under the Borrowers shall not 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 and authorizes the Collateral Agent to have all the rights and benefits hereunder and thereunder (or any other similar term) with reference 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 Administrative Collateral Agent is not intended to connote any fiduciary by the terms hereof or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead thereof, together with such term is used actions and powers as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting partiesare reasonably incidental thereto. 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requiresindicates, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of banking, trust or other business with any of the Borrowers Obligors (or any Subsidiary or other Affiliate thereof 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 of the Obligors or other Affiliate thereof for services in connection with this Agreement or otherwise without any duty having to account therefor for the same to the other Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and 9.02), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief LawLenders, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to any Lender or the Issuing Bank 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, expressly provided for herein or as in the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 7.02 and 9.02other Loan Documents) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgmentmisconduct. 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Defaulttherein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinherein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. 135 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, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one (1) 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 by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying providing not less than thirty (30) days advance written notice to the Lenders, the Issuing Lenders Banks and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (Borrower not to be unreasonably withheld or delayed(or, if an Event of Default has occurred and is continuing in consultation with the Borrower), to appoint a successor, which is not a natural person, a Defaulting Lender or a Disqualified Lender. 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’s resignation shall nonetheless become effective at the end of such thirty (30) days period (except that in the case of any collateral security held by the Administrative Agent may (but shall not be obligated to), on behalf of the Lenders and or the Issuing Lenders, appoint, with the consent Banks under any of the Company (not Loan Documents, the retiring or removed Administrative Agent shall continue to be unreasonably withheld or delayed), hold such collateral security until such time as a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (xis appointed) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under (2) the other Loan Documents Required Lenders shall perform the duties of the Administrative Agent (and (b) except for any indemnity all payments or other amounts then owed to the retiring Administrative Agent, all payments, and communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly directly) until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent hereunderagent as provided for above in this paragraph. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents(if not already discharged therefrom as provided above in this paragraph). The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the its benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank SMBC as Administrative Agent pursuant to this Section 8.01 shall also constitute its resignation as an Issuing Bank and a Swingline Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company acceptance of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender)successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing XxxxxxBank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents Documents, and (c) the successor Xxxxxxx Xxxxxx Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank the retiring Issuing Bank to effectively assume the obligations of Citibank the retiring Issuing Bank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges agrees that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender Agreement and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties 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 and other Loan Documents to which it is a party. Except as otherwise provided in Section 9.02(b) with respect to this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The the Administrative Agent shall not be responsible or have any liability formay, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality prior consent of the foregoingRequired Lenders (but not otherwise), consent to any modification, supplement or waiver under any of the Loan Documents, provided that, without the prior consent of each Lender and each Issuing Bank, the Administrative Agent shall not (xexcept as provided herein or in the Security Documents) be obligated 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 ascertainadditional obligations being secured by all or substantially all of such collateral security, monitor or inquire as alter the relative priorities of the obligations entitled to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability the benefits of the Liens created under the Security Documents with respect to all or arising out substantially all of any assignment or participation of Loansthe Collateral, or disclosure of confidential informationexcept 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 Disqualified Institution. It party) any Lien covering property that is agreed that the Syndication Agentsubject of either a disposition of property not prohibited 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) in accordance with Section 9.02(c) and (3) spread Liens to any Designated Indebtedness or Hedging Agreement Obligations (as such terms are defined in the Co-Documentation Agents Guarantee and Security Agreement) in accordance with the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Guarantee and Security Agreement.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (PGIM Private Credit Fund)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably designates and appoints CitibankJPMorgan Chase Bank, N.A and its successors to serve as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and administrative agent under the other Loan Documents (and JPMorgan Chase Bank, N.A hereby accepts such appointment) and irrevocably 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Documents (or any other similar term) Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) duties, responsibilities, or other obligations arising under agency doctrine of any applicable Lawlaw. Instead Instead, such term is used as a matter of market custom, custom and is intended to create or reflect only an administrative relationship between contracting parties. 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the such Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent hereunder and without any duty to account therefor to the LendersLenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 powerspower, 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 by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary expressly provided for herein, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Sections 7.02 and 9.02the Loan Documents), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may could expose the Administrative Agent to liability or that is be contrary to this Agreement or any other Loan Document or applicable Lawlaw, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower, any Subsidiary or any other Affiliate of its Subsidiaries any of the foregoing that is communicated to or obtained by the 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, or as the Administrative Agent shall believe in good faith shall to be necessary, under the circumstances as provided in Sections 7.02 and 9.02the 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 nonappealable non-appealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by the Company, another Borrower, a Lender or an Issuing Lender. The 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein in this Agreement or therein any other Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement, Agreement or any other Loan Document or any other agreement, instrument or document, document or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinin this Agreement or any other 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the 364-Day Exposure or the component amounts thereof. The Administrative Agent shall be entitled to rely uponrely, and shall not incur any liability for relying uponrelying, 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 or sent or otherwise authenticated by the proper PersonPerson (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 have been be made by the proper PersonPerson (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 thereonsuch statement prior to receipt of written confirmation thereof. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any an Issuing LenderBank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender Bank prior to the making of such Loan or the issuance, extension, renewal or increase issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), 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 hereunder and 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 of its their duties and exercise its their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, agent and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non non-appealable judgment that the Administrative Agent acted with gross negligence or willful wilful misconduct in the selection of such sub-agents. The Subject to the terms of this paragraph, the Administrative Agent may resign at any time by notifying upon 30 days’ written notice of its intent to resign from its capacity as such to the Lenders, the Issuing Lenders Banks and the CompanyBorrower. Subject to the terms of this paragraph, if the Person serving as the Administrative Agent becomes a Defaulting Lender pursuant to clause (d)(i) of the definition of “Defaulting Lender”, the Required Lenders may, to the extent permitted by applicable law, remove such Person as the Administrative Agent upon 30 days’ written notice to the Borrower and such Person. Upon receipt of any such resignationnotice of resignation or removal, the Required Lenders shall have the right, subject (unless an Event of Default under clauses (a), (b), (h) or (i) of Article VII with respect to the consent of Borrower shall have occurred and be continuing) to approval by the Company Borrower (which approval shall not to be unreasonably withheld withheld, conditioned or delayed), 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 resignationintent to resign (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to), on behalf of the Lenders and the Issuing LendersBanks, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent Agent, which shall be a bank with an office in New York, New York, and with an office in Canada the United States of America or an Affiliate of any such bank; provided that (x) in no event shall any such . Whether or not a successor Administrative Agent be a Defaulting Lender or Disqualified Institution has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date. If no successor shall have been so appointed by the Required Lenders and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has have accepted such appointmentappointment within 30 days after the Required Lenders give notice of removal (the “Removal Effective Date”) as provided in the third preceding sentence, then such resignation removal shall nonetheless become effective in accordance with such notice and (a) on the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunderRemoval 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 of the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the resignation effective dateAgent), and the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between by the Company Borrower and such successor. After Notwithstanding the foregoing, in the event no successor Administrative Agent’s 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 or the Required Lenders give notice of removal, as the case may be, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Borrower or the Required Lenders may give notice of removal to the other Lenders, the Issuing Banks and the Borrower, as the case may be, whereupon, on the date of effectiveness of such resignation or removal stated in such notice, (a) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, and (b) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Administrative Agent; provided that (i) all payments (except for indemnity payments owed to the retiring or removed Administrative Agent) 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 or removal from its capacity as such, the provisions of this Article and Section 9.03 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 or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken the matters referred to in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), proviso under clause (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Creditabove. Each Lender and each Issuing Lender Bank acknowledges that it has, independently and without reliance upon the Administrative Agent Agent, the Sustainability Structuring Agent, any Arranger or any other Lender or Issuing Bank, or any of their 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 Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.this
Appears in 1 contract
The Administrative Agent. Each of the Lenders and Issuing Lenders hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as 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 and or thereof, together with such actions and powers as are reasonably incidental thereto. Except The 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 in trust for) such Lender 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 respect 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 consent rights benefits of the Company relating to a successor agent as set forth below, the all provisions of this Article are solely for including Section 9.03, as though such co-agents, sub-agents and attorneys-in-fact were the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “collateral agent” under the Loan Documents) as if set forth in full 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 Lawrespect thereto. 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. Credit Agreement 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 Agent, and 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 such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lendershereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and 9.02), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the 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, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 7.02 and 9.02) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgmentmisconduct. 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Defaulttherein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinherein 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 electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Credit Agreement Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the consent of the Company (not to be unreasonably withheld or delayed)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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such Agent’s resignation shall nonetheless become effective in accordance with such notice and (a1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under (2) the other Loan Documents Required Lenders shall perform the duties of the Administrative Agent (and (b) except for any indemnity all payments or other amounts then owed to the retiring Administrative Agent, all payments, and communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly directly) until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent hereunderagent as provided for above in this paragraph. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents(if not already discharged therefrom as provided above in this paragraph). The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the its benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality In case of the foregoingpendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Loan Party, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to irrespective of whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out the principal of any assignment Loan shall then be due and payable as herein expressed or participation by declaration or otherwise and irrespective of Loanswhether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or disclosure otherwise: (a) to file and prove a claim for the whole amount of confidential information, the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to any Disqualified Institution. It is agreed that file such other documents as may be necessary or advisable in order to have the Syndication Agent, claims of the Co-Documentation Agents Lenders and the Joint Lead Arrangers shallAdministrative Agent (including any claim for the reasonable compensation, in their capacities as suchexpenses, have no duties or responsibilities under this disbursements and Credit Agreement.
Appears in 1 contract
The Administrative Agent. Each of the Lenders and Issuing Lenders hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the The provisions of this Article are solely for the benefit of the Administrative Agent, Agent and the Lenders, and neither the Issuing Lenders and the Borrowers Borrower nor any other Loan Party shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” as used 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 Lawlaw. Instead Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The Person 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 Agent, and 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 such bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of business with the Borrowers Parent or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lendershereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), provided that and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Parent or any of its Subsidiaries that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall be necessary, necessary under the circumstances as provided in Sections 7.02 and Section 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 final and nonappealable judgmentjurisdiction. 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 CompanyParent, another Borrowerthe Assuming Borrower or a Lender, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of in any DefaultLoan Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, document or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinin 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, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for one or more of the BorrowersLoan 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 hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Subject to the appointment and acceptance of a successor Administrative Agent shall not be responsible for as provided in this paragraph, the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Parent and the CompanyAssuming Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the consent of the Company (not to be unreasonably withheld or delayed)Parent, 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 (but shall not be obligated to)may, on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that . If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (xd) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in no event shall any writing to the Parent and such Person remove such Person as Administrative Agent and, in consultation with the Parent, appoint a successor Administrative Agent which shall be a Defaulting Lender bank with an office in New York, New York, or Disqualified Institution an Affiliate of any such bank. If no such successor shall have been so appointed by the Required Lenders and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has have accepted such appointmentappointment within thirty (30) days (the “Removal Effective Date”), then such resignation removal shall nonetheless become effective in accordance with such notice and (a) on the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunderRemoval 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 of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documentshereunder. The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender acknowledges and each Issuing agrees that the extensions of credit made hereunder are commercial loans and not investments in a business enterprise or securities. Each Lender acknowledges 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 any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this AgreementAgreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender and each Issuing Lender also acknowledges that it willshall, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties 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 Parent and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunderthereunder and in deciding whether or to the extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder. None of the Lenders, if any, identified in this Agreement as a Syndication Agent or Co-Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Syndication Agent or Co-Documentation Agents, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph. 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 not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality exclusive right on behalf of the foregoing, Lenders to enforce the Administrative Agent shall not (x) be obligated payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out the terms of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.
Appears in 1 contract
Samples: Loan Agreement (NetApp, Inc.)
The Administrative Agent. Each of the Lenders and Issuing Lenders hereby irrevocably appoints Citibank, Credit Suisse (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the Borrowers shall not 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 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers any Loan Party or any Subsidiary subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and without acknowledge that the Administrative Agent shall not be under any duty obligation to account therefor provide such information to the Lendersthem. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, Documents and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (a) the Administrative Agent (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the 164 Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law; it being understood that such term is used merely as a matter of market custom, and is continuingintended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powerspower, except discretionary rights and powers that are expressly contemplated hereby or by the other Loan Documents that and which the Administrative Agent is required to exercise in writing as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Lawlaws, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Parent Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party 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, or as the Administrative Agent shall believe in good faith shall be necessary, under the relevant circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct misconduct, as determined by the final and non-appealable judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed not to have knowledge of the existence of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyParent Borrower or any Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenantscovenant, agreements agreement or other terms term or conditions condition set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in Article IV or elsewhere hereinin any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative AgentAgent or (vii) any property, book or record of any Loan Party or any Affiliate thereof. The If any Lender acquires knowledge of the existence of a Default or Event of Default, it shall promptly notify the Administrative Agent shall be entitled and the other Lenders thereof in writing. Each Lender agrees that, except with the written consent of the Administrative Agent, it will not take any enforcement action hereunder or under any other Loan Document, accelerate the Obligations under any Loan Document, or exercise any right that it might otherwise have under applicable law or otherwise to rely uponcredit bid at any foreclosure sale, and shall not incur any liability for relying uponUCC sale, any notice, request, certificate, consent, statement, instrument, document sale under Section 363 of the Bankruptcy Code or other writing (similar Dispositions of Collateral. Notwithstanding the foregoing, however, a Lender may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations held by such Xxxxxx, including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Personfiling of a proof of claim in a case under the Bankruptcy Code. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder Notwithstanding anything to the making contrary contained herein or in any of a Loanthe other Loan Documents, or Holdings, the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing LenderBorrowers, the Administrative Agent may presume and each Secured Party agree 165 that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent (i) no Secured Party shall have received notice any right individually to realize upon any of the contrary from such Lender Collateral or such Issuing Lender prior to enforce the making of such Loan or the issuanceDocuments; it being understood and agreed that all powers, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers remedies hereunder shall be exercised solely and under any other Loan Document by or through any one or more sub-agents appointed by exclusively 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 by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing LendersSecured Parties, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice the terms hereof and (a) the retiring Administrative Agent shall be discharged from its duties all powers, rights and obligations hereunder and remedies under the other Loan Documents shall be exercised solely and (b) except for any indemnity payments or other amounts then owed to exclusively by the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as in the event of a foreclosure by the Administrative Agent on any of them continues the Collateral pursuant to act a public or private sale or in any capacity hereunder or under the other Loan Documents, including in respect event of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, other Disposition (including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon 363 of the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting LenderBankruptcy Code), (aA) such successor shall succeed to the Administrative Agent, as agent for and become vested with all representative of the rightsSecured Parties, powersshall be entitled, privileges for the purpose of bidding and duties making settlement or payment of the retiring Issuing Xxxxxxpurchase price for all or any portion of the Collateral sold at any such sale, (b) to use and apply any of the retiring Issuing Lender shall be discharged from all Obligations as a credit on account of their respective duties and obligations hereunder or under the other Loan Documents purchase price for any Collateral payable by the Administrative Agent at such Disposition and (cB) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender may be the purchaser or licensor of any or all of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection with (i) the management or release of any Collateral or of the obligations of any Loan Party under this Agreement or (ii) any waiver, consent, modification or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision amendment with respect to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent Agreement or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunderDocument. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality Each of the foregoing, the Administrative Agent shall not Lenders hereby irrevocably authorizes (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is and by entering into a Disqualified Institution or (y) have any liability Hedge Agreement with respect to or arising out any Secured Hedging Obligation and/or by entering into documentation in connection with any Banking Services Obligation, each of any assignment or participation of Loans, or disclosure of confidential information, the other Secured Parties hereby authorizes and shall be deemed to any Disqualified Institution. It is agreed that authorize) the Syndication Administrative Agent, on behalf of all Secured Parties to take any of the Co-Documentation Agents and following actions upon the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.instruction of the Required Lenders:
Appears in 1 contract
The Administrative Agent. Each of the Lenders and Issuing Lenders Banks hereby irrevocably appoints Citibank, Barclays (or any successor appointed pursuant hereto) as its agent and as the Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf behalf, including execution, delivery and administration of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms hereof and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect In addition, to the consent rights extent required under the laws of any jurisdiction other than the U.S., each of the Company relating Lenders and Issuing Banks hereby grants to the Administrative Agent any required powers of attorney to execute any Collateral Document governed by the laws of such jurisdiction on such Lender’s or Issuing Bank’s behalf. Any Person serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a successor agent Lender and Issuing Bank as set forth below, any other Lender and Issuing Bank and may exercise the provisions of this Article are solely for the benefit of same as though it were not the Administrative Agent, and the term “Lender”, “Lenders”, “Issuing Bank” and “Issuing Banks” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Lender or an Issuing Bank, include each Person serving as Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Loan Parties or any subsidiary of a Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Lenders and Issuing Banks acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate), and acknowledge that the Issuing Lenders and the Borrowers Administrative Agent shall not be under any obligation to provide such information to them. The Administrative Agent shall not have rights as any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a third party beneficiary Default or Event of any Default has occurred and is continuing and, without limiting the generality of such provisions. It is understood and agreed that the foregoing, the use of the term “agent” herein or and in any the 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 law and instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. 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 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, 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 Borrowers or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent (a) 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 155 discretionary powers, except discretionary rights and powers that are expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing 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 Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Lawlaws, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company any Loan Party or any of its Subsidiaries Affiliates that is communicated to or obtained by the 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 Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct as determined by the final judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the Company, another Borrower, a Borrower or any Lender or an Issuing Lender. The 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of Liens on the Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere hereinin 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or (vii) the issuanceproperties, extension, renewal books or increase records of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender any Loan Party or any Issuing LenderAffiliate thereof. Each Lender agrees that, except with the written consent of the Administrative Agent may presume that such condition is satisfactory to such Lender Agent, it will not take any enforcement action hereunder or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by Document, accelerate the Obligations under any Loan Document, or through exercise any one right that it might otherwise have under applicable law or more sub-agents appointed by otherwise to credit bid at foreclosure sales, UCC sales, any sale under Section 363 of the Administrative AgentBankruptcy Code or other similar Dispositions of Collateral. The Administrative Agent and any such sub-agent Notwithstanding the foregoing, however, a Lender may perform any and all of its duties and exercise take action to preserve or enforce its rights and powers against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations held by or through their respective Related Partiessuch Lender, including the filing of proofs of claim in a case under the Bankruptcy Code. The exculpatory provisions of this Article shall apply to any such sub-agent and Notwithstanding anything to the Related Parties contrary contained herein or in any of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions Loan Parties, the Administrative Agent and each Secured Party agrees that (i) no Secured Party shall have any right individually to realize upon any of this Article the Collateral or to enforce the Loan Guaranty, it being understood and Section 9.03 shall continue in effect for agreed that all powers, rights and remedies hereunder may be exercised solely by the benefit of such retiring Administrative Agent, its sub-agents and their respective Related on behalf of the Secured Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent accordance with the terms hereof and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges rights and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or remedies under the other Loan Documents may be exercised solely by the Administrative Agent, and (cii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the successor Xxxxxxx Xxxxxx Administrative Agent, as agent for and representative of the Secured Parties, shall issue letters of credit in substitution be entitled, for the Letters purpose of Creditbidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such Disposition, if any, outstanding to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender Disposition and each Issuing Lender acknowledges that it has, independently and without reliance upon (B) the Administrative Agent or any other Lender may be the purchaser or licensor of any or all of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into Collateral at any such Disposition. No holder of Secured Hedging Obligations or Banking Services Obligations shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not Lenders hereby irrevocably authorizes (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is and by entering into a Disqualified Institution or (y) have any liability Hedge Agreement with respect to or arising out Secured Hedging Obligations and/or by entering into documentation in connection with Banking Services Obligations, each of any assignment or participation the other Secured Parties hereby authorizes and shall be deemed to authorize) the Administrative Agent, on behalf of Loans, or disclosure of confidential informationall Secured Parties, to take any Disqualified Institution. It is agreed that of the Syndication Agent, following actions upon the Co-Documentation Agents and instruction of the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.Required Lenders:
Appears in 1 contract
The Administrative Agent. Each of the Lenders Lenders, on behalf of itself and Issuing Lenders any of its Affiliates that are Secured Parties, hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect In addition, to the consent rights extent required under the laws of any jurisdiction other than the United States of America, each of the Company relating Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, hereby grants to a successor agent as set forth below, the Administrative Agent any required powers of attorney to execute any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. The provisions of this Article are solely for the benefit of the Administrative Agent, Agent and the Lenders, and neither the Issuing Lenders and the Borrowers Company nor any other Loan Party shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” as used 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 Lawlaw. Instead Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The Person 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 Agent, and 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 such bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of business with the Borrowers Company or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lendershereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), provided that and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall be necessary, necessary under the circumstances as provided in Sections 7.02 and Section 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 final and nonappealable judgmentjurisdiction. 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of in any DefaultLoan Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other 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 IV or elsewhere hereinin 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, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersCompany), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Subject to the appointment and acceptance of a successor Administrative Agent shall not be responsible for as provided in this paragraph, the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the consent of the Company (not to be unreasonably withheld or delayed)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 (but shall not be obligated to)may, on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a its successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor predecessor, unless otherwise agreed between by the Company Borrower and such successor. After Notwithstanding the foregoing, in the event no successor Administrative Agent’s 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 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. Following the effectiveness of the Administrative Agent's resignation from its capacity as such, the provisions of this Article Article, Section 2.17(d) and Section 9.03 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 (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken the matters referred to in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), proviso under clause (a) such successor shall succeed to above. Each Lender acknowledges and become vested with all agrees that the extensions of the rights, powers, privileges credit made hereunder are commercial loans and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit and not investments in substitution for the Letters of Credit, if any, outstanding at the time of such succession a business enterprise or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Creditsecurities. Each Lender and each Issuing Lender acknowledges 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 any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this AgreementAgreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender and each Issuing Lender also acknowledges that it willshall, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information (which may contain MNPI) 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 thereunderthereunder 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. 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 not have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement. In its capacity, the Administrative Agent is a “representative” of the Secured Parties within the meaning of the term “secured party” as defined in the UCC. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Secured Party (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be responsible 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 have appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Secured Parties. The Lenders hereby authorize the Administrative Agent, at its option and in its discretion, to release any liability forLien granted to or held by the Administrative Agent upon any Collateral (i) as described in Section 9.02(d); (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, transfer or other Disposition of assets constituting Collateral which is permitted pursuant to the terms of any Loan Document, or have any duty consented to ascertain, inquire into, monitor in writing by the Required Lenders or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality all of the foregoingLenders, as applicable, and upon three (3) Business Days’ (or such shorter period as is acceptable to the Administrative Agent) prior written request by the Company 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 100 evidence the release of the Liens granted to the Administrative Agent for the benefit of the Secured Parties herein or pursuant hereto upon the Collateral that was sold or transferred; provided, however, that (i) the Administrative Agent 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 (xii) such release shall not in any manner discharge, affect or impair the Secured Obligations or any Liens upon (or obligations of the Company or any Subsidiary in respect of) all interests retained by the Company or any Subsidiary, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the Collateral. Any execution and delivery by the Administrative Agent of documents in connection with any such release shall be obligated without recourse to ascertain, monitor or inquire as to whether warranty by the Administrative Agent. In case of the pendency of any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability proceeding with respect to any Loan Party under any Federal, state or arising out foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any assignment Loan or participation any LC Disbursement shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of Loans, whether the Administrative Agent shall have made any demand on the Company) shall be entitled and empowered (but not obligated) by intervention in such proceeding or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.otherwise:
Appears in 1 contract
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as 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 and or thereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights Each of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, Lenders and the Issuing Lenders Banks hereby irrevocably appoints the Collateral Agent as the collateral agent hereunder and under the Borrowers shall not 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 and authorizes the Collateral Agent to have all the rights and benefits hereunder and thereunder (or any other similar term) with reference 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 Administrative Collateral Agent is not intended to connote any fiduciary by the terms hereof or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead thereof, together with such term is used actions and powers as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting partiesare reasonably incidental thereto. 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requiresindicates, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of banking, trust or other business with any of the Borrowers Obligors (or any Subsidiary or other Affiliate thereof 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 of the Obligors or other Affiliate thereof for services in connection with this Agreement or otherwise without any duty having to account therefor for the same to the other Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and 9.02), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief LawLenders, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the 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, expressly provided for herein or as in the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 7.02 and 9.02other Loan Documents) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgmentmisconduct. 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Defaulttherein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinherein 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 electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one (1) 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 by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Banks and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (Borrower not to be unreasonably withheld or delayed(or, if an Event of Default has occurred and is continuing in consultation with the Borrower), to appoint a successor, which is not a natural person, a Defaulting Lender or a Disqualified Lender. 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’s resignation shall nonetheless become effective (except that in the case of any collateral security held by the Administrative Agent may (but shall not be obligated to), on behalf of the Lenders and or the Issuing Lenders, appoint, with the consent Banks under any of the Company (not Loan Documents, the retiring or removed Administrative Agent shall continue to be unreasonably withheld or delayed), hold such collateral security until such time as a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (xis appointed) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under (2) the other Loan Documents Required Lenders shall perform the duties of the Administrative Agent (and (b) except for any indemnity all payments or other amounts then owed to the retiring Administrative Agent, all payments, and communications and determinations provided to be made by, to or through the 155 Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly directly) until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent hereunderagent as provided for above in this paragraph. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents(if not already discharged therefrom as provided above in this paragraph). The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the its benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank Truist Bank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Bank and a Swingline Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company acceptance of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender)successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing XxxxxxBank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents Documents, and (c) the successor Xxxxxxx Xxxxxx Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank the retiring Issuing Bank to effectively assume the obligations of Citibank the retiring Issuing Bank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges agrees that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender Agreement and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties 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 and other Loan Documents to which it is a party. Except as otherwise provided in Section 9.02(b) with respect to this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The the Administrative Agent shall not be responsible or have any liability formay, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality prior consent of the foregoingRequired Lenders (but not otherwise), consent to any modification, supplement or waiver under any of the Loan Documents, provided that, without the prior consent of each Lender and each Issuing Bank, the Administrative Agent shall not (xexcept as provided herein or in the Security Documents) be obligated 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 ascertainadditional obligations being secured by all or substantially all of such collateral security, monitor or inquire as alter the relative priorities of the obligations entitled to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability the benefits of the Liens created under the Security Documents with respect to all or arising out substantially all of any assignment or participation of Loansthe Collateral, or disclosure of confidential informationexcept 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 Disqualified Institution. It party) any Lien covering property that is agreed that the Syndication Agentsubject of either a disposition of property (including, without limitation, any property subject to a participation or repurchase transaction) not prohibited hereunder or a disposition to which the Co-Documentation Agents Required Lenders have consented, (2) release from any Guarantee and Security Agreement any “Subsidiary Guarantor” (and any property of such Subsidiary Guarantor) in accordance with Section 9.02(c) and (3) spread Liens to any Designated Indebtedness or Hedging Agreement Obligations (as such terms are defined in the Joint Lead Arrangers shall, Guarantee and Security Agreement) in their capacities as such, have no duties or responsibilities under this accordance with the Guarantee and Security Agreement.
Appears in 1 contract
Samples: Secured Revolving Credit Agreement (Blue Owl Capital Corp)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, the entity named as Administrative Agent, Agent in the heading of this Agreement and its successors to act on its behalf serve as the Administrative Agent hereunder and administrative agent under the other Loan Documents 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 and thereofof the Loan 131 Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Company relating to a successor agent as set forth below, the The provisions of this Article VIII are solely for the benefit of the Administrative Agent, the Lenders, Lenders and the Issuing Lenders Banks, and except as set forth in the Borrowers sixth, seventh, eighth and eleventh paragraphs of this Article, neither the Borrower nor any other Loan Party shall not 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 Lawlaw. 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 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 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, 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 Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent hereunder and without any duty to account therefor to the LendersLenders or to provide notice to, or obtain the consent of, the Lenders with respect thereto. The Neither the Administrative Agent nor the Arrangers, as applicable, shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its their respective duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent or the Arrangers, or each of their respective Related Parties, as applicable, (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) shall not have any duty to take any discretionary action or to exercise any discretionary powerspower, 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 by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as expressly provided in Sections 7.02 and 9.02the Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is be contrary to any Loan Document or applicable Lawlaw, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, Law and (c) shall not, except as expressly set forth herein and in the other Loan Documents, not have any duty or responsibility to disclose, and shall not be liable for the failure to disclose, to any Lender or any Issuing Bank, any credit or other information relating to concerning the Company business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties or any of its Subsidiaries their Affiliates, that is communicated to to, obtained or obtained by in the Person serving as possession of, the Administrative Agent Agent, the Arrangers or any of its Affiliates their Related Parties in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall to be necessary, under the circumstances as provided in Sections 7.02 and 9.02the Loan Documents) or in the absence of its own gross negligence or willful misconduct misconduct, as determined by a court of competent jurisdiction by a final and nonappealable 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 Company, another Borrower, a Lender or an Issuing Lender. The Bank, and the Administrative Agent shall not be responsible for or have any duty or obligation to any Lender or Participant or any other Person to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein in any Loan Document or the occurrence of any Default, (iv) the sufficiency, 132 validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinin any Loan Document, other than to confirm receipt of items expressly required to be delivered 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 uponrely, and shall not incur any liability for relying uponrelying, 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, sent or otherwise authenticated by the proper PersonPerson (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 have been be made by the proper PersonPerson (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 thereonsuch statement prior to receipt of written confirmation thereof. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any an Issuing LenderBank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender Bank prior to the making of such Loan or the issuance, extension, renewal or increase issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), 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 hereunder and or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article VIII shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. 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 resignation to the Lenders, the Issuing Lenders Banks and the CompanyBorrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the rightright to appoint a successor, with which successor, so long as no Event of Default described in clause (a), (b), (i) or (j) of Section 7.01 shall have occurred and be continuing, shall be subject to approval by the consent of the Company Borrower (which approval shall not to be unreasonably withheld or delayed). Such successor shall be a bank with an office in the United States, to appoint a successoror an Affiliate of any such bank with an office in the United States. If no such 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 resignationresignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to) (with the consent of the Borrower so long as no Event of Default described in clause (a), (b), (i) or (j) of Section 7.01 shall have occurred and be continuing, such 133 consent not to be unreasonably withheld or delayed), on behalf of the Lenders and the Issuing LendersBanks, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be Agent. Whether or not a bank with an office in New Yorksuccessor has been appointed, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and on the Resignation Effective Date. With effect from the Resignation Effective Date, (ai) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.and
Appears in 1 contract
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as 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 and or thereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights Each of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, Lenders and the Issuing Lenders Banks hereby irrevocably appoints the Collateral Agent as the collateral agent hereunder and under the Borrowers shall not 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 and authorizes the Collateral Agent to have all the rights and benefits hereunder and thereunder (or any other similar term) with reference 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 Administrative Collateral Agent is not intended to connote any fiduciary by the terms hereof or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead thereof, together with such term is used actions and powers as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting partiesare reasonably incidental thereto. 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requiresindicates, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of banking, trust or other business with any of the Borrowers Obligors (or any Subsidiary or other Affiliate thereof 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 of the Obligors or other Affiliate thereof for services in connection with this Agreement or otherwise without any duty having to account therefor for the same to the other Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and 9.02), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief LawLenders, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the 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, expressly provided for herein or as in the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 7.02 and 9.02other Loan Documents) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgmentmisconduct. 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Defaulttherein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinherein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. 152 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, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one (1) 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 by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Banks and the CompanyBorrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (Borrower not to be unreasonably withheld or delayed(or, if an Event of Default has occurred and is continuing in consultation with the Borrower), to appoint a successor, which is not a natural person, a Defaulting Lender or a Disqualified Lender. 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’s resignation shall nonetheless become effective (except that in the case of any collateral security held by the Administrative Agent may (but shall not be obligated to), on behalf of the Lenders and or the Issuing Lenders, appoint, with the consent Banks under any of the Company (not Loan Documents, the retiring or removed Administrative Agent shall continue to be unreasonably withheld or delayed), hold such collateral security until such time as a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (xis appointed) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under (2) the other Loan Documents Required Lenders shall perform the duties of the Administrative Agent (and (b) except for any indemnity all payments or other amounts then owed to the retiring Administrative Agent, all payments, and communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly directly) until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent hereunderagent as provided for above in this paragraph. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents(if not already discharged therefrom as provided above in this paragraph). The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documentshereunder, the provisions of this Article and Section 9.03 shall continue in effect for the its benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank SMBC as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Bank and a Swingline Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company acceptance of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender)successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing XxxxxxBank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents Documents, and (c) the successor Xxxxxxx Xxxxxx Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank the retiring Issuing Bank to effectively assume the obligations of Citibank the retiring Issuing Bank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges agrees that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender Agreement and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties 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 and other Loan Documents to which it is a party. Except as otherwise provided in Section 9.02(b) with respect to this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The the Administrative Agent shall not be responsible or have any liability formay, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality prior consent of the foregoingRequired Lenders (but not otherwise), consent to any modification, supplement or waiver under any of the Loan Documents, provided that, without the prior consent of each Lender and each Issuing Bank, the Administrative Agent shall not (xexcept as provided herein or in the Security Documents) be obligated 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 ascertainadditional obligations being secured by all or substantially all of such collateral security, monitor or inquire as alter the relative priorities of the obligations entitled to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability the benefits of the Liens created under the Security Documents with respect to all or arising out substantially all of any assignment or participation of Loansthe Collateral, or disclosure of confidential informationexcept 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 Disqualified Institution. It party) any Lien covering property that is agreed that the Syndication Agentsubject of either a disposition of property (including, without limitation, any property subject to a participation or repurchase transaction) not prohibited hereunder or a disposition to which the Co-Documentation Agents Required Lenders have consented, (2) release from any Guarantee and Security Agreement any “Subsidiary Guarantor” (and any property of such Subsidiary Guarantor) in accordance with Section 9.02(c) and (3) spread Liens to any Designated Indebtedness or Hedging Agreement Obligations (as such terms are defined in the Joint Lead Arrangers shall, Guarantee and Security Agreement) in their capacities as such, have no duties or responsibilities under this accordance with the Guarantee and Security Agreement.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Blue Owl Capital Corp II)
The Administrative Agent. Each of the Lenders Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, and each of the Issuing Lenders Banks hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect In addition, to the consent rights extent required under the laws of any jurisdiction other than the United States of America, each of the Company relating Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, and each of the Issuing Banks hereby grants to a successor agent as set forth below, the Administrative Agent any required powers of attorney to execute any Collateral Document governed by the laws of such jurisdiction on such Lender’s or Issuing Bank’s behalf. The provisions of this Article are solely for the benefit of the Administrative Agent, Agent and the Lenders, Lenders (including the Swingline Lender and the Issuing Lenders Banks), and neither the Borrowers Borrower nor any other Loan Party shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” as used 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 Lawlaw. Instead Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The Person 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 Agent, and 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 such bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lendershereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), provided that and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any of its Subsidiaries that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith shall be necessary, necessary under the circumstances as provided in Sections 7.02 and Section 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 final and nonappealable judgmentjurisdiction. 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Natus Medical Inc)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Bank, each on behalf of itself and any of its Affiliates that is a Secured Party, hereby irrevocably appoints Citibank, as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 and thereofhereof, together with such actions and powers as are reasonably incidental thereto. Except with respect In addition, to the consent rights extent required under the laws of any jurisdiction other than the U.S., each of the Company relating Lenders and the Issuing Bank hereby grants to a successor agent as set forth belowthe Administrative Agent any required powers of attorney to execute any Collateral Document governed by the laws of such jurisdiction on such Lender’s or Issuing Bank’s behalf. Except for the final paragraph of this Article VIII, the provisions of this Article are solely for the benefit of the Administrative Agent, the LendersCredit Parties, and the Issuing Lenders and the Borrowers Loan Parties shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” as used 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 Lawlaw. Instead Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The 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 Agent, and 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 such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lendershereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) 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 by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Sections 7.02 and Section 9.02), provided that and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company any Loan Party or any of its Subsidiaries that is communicated to or obtained by the 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, or as the Administrative Agent shall believe in good faith shall be necessary, necessary under the circumstances as provided in Sections 7.02 and Section 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 final and nonappealable judgmentjurisdiction. 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 CompanyBorrower or a Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder under any Loan Document or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of in any DefaultLoan Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, Agreement or any other 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 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable, or be responsible for any loss, cost or expense suffered by the Borrower, any Subsidiary, any Lender or any Issuing Bank as a result of, any determination of the Revolving Credit Exposure, any of the component amounts thereof or any portion thereof attributable to each Lender or Issuing Bank, or any Exchange Rate or Dollar Amount. 118 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, signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Subject to the appointment and acceptance of a successor Administrative Agent shall not be responsible for as provided in this paragraph, the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders Bank and the CompanyBorrower thirty (30) days in advance. Upon any such resignation, the Required Lenders shall have the right, in consultation with the consent Borrower, to appoint a successor which shall be a commercial bank with an office in New York, New York, or an Affiliate of any such commercial bank, which successor, so long as no Event of Default shall have occurred and be continuing, shall be subject to approval by the Company Borrower (which approval shall not to be unreasonably withheld or delayed), to appoint a successor. 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 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (but shall not be obligated to)may, on behalf of the Lenders and the Issuing LendersBank, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a commercial bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such commercial bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documentshereunder. The fees payable by the Company Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company Borrower and such successor. After Notwithstanding the foregoing, in the event no successor Administrative Agent’s 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 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 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 duty 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 the Issuing Bank. Following the effectiveness of the Administrative Agent’s resignation from its capacity as such, the provisions of this Article Article, Section 2.17(d) and Section 9.03 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 (i) it was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken the matters referred to in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), proviso under clause (a) such successor shall succeed to above. Each Lender acknowledges and become vested with all agrees that the extensions of the rights, powers, privileges credit made hereunder are commercial loans and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit and not investments in substitution for the Letters of Credit, if any, outstanding at the time of such succession a business enterprise or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Creditsecurities. Each Lender and each Issuing Lender acknowledges 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 of this credit facility or any amendment thereto or any other Lender or any of and their respective Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this AgreementAgreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender and each Issuing Lender also acknowledges that it willshall, independently and without reliance upon the Administrative Agent Agent, any arranger of this credit facility or any amendment thereto or any other Lender or any other and their respective Related Parties 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, Agreement or any other Loan Document or Documents, any related agreement or any document furnished hereunder or thereunderthereunder 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. The Administrative Anything herein to the contrary notwithstanding, no Lead Arranger or Syndication Agent listed on the cover page hereof shall not be responsible or have any liability forpowers, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this AgreementCredit 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.
Appears in 1 contract
Samples: Credit Agreement (Virtusa Corp)
The Administrative Agent. Each of the Lenders and the Issuing Lenders Banks, on behalf of itself and its applicable Affiliates and in their respective capacities as such and as Secured Parties in respect of any Secured Hedging Obligations or Banking Services Obligations, as applicable, hereby irrevocably appoints Citibank, JPM (or any successor appointed pursuant hereto) as Administrative Agent, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf behalf, including execution of the other Loan Documents or any other documents with respect to the rights of the Secured Parties and the Collateral as contemplated by this Agreement and the Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms hereof and thereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights Each of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, Secured Parties hereby irrevocably appoints and the Issuing Lenders and the Borrowers shall not 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 authorizes the Administrative Agent is not intended (as collateral agent) to connote act as the agent of (and to hold any fiduciary security interest created by the Loan Documents for and on behalf of or other implied (or expresson trust for) obligations arising under agency doctrine such Secured Party for purposes of acquiring, holding and enforcing any applicable Law. Instead and all Liens on Collateral granted by the Loan Parties to secure any of the Obligations, together with such term is used powers and discretion as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting partiesare reasonably incidental thereto. The Lenders agree that any such actions by the Administrative Agent shall bind such Secured Party. 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 Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or indicated, unless the context otherwise requiresrequires or unless such Person is in fact not a Lender, include the each Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money 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 Borrowers any Loan Party or any Subsidiary subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and without acknowledge that the Administrative Agent shall not be under any duty obligation to account therefor provide such information to the Lendersthem. The Administrative Agent shall not have any duties or obligations except those expressly set forth 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 (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is continuingintended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powerspower, except discretionary rights and powers that are expressly contemplated hereby or by the other Loan Documents that and which the Administrative Agent is required to exercise in writing as directed in writing by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Sections 7.02 and Section 9.02), ; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance Requirements of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Company Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the relevant circumstances as provided in Sections 7.02 and Section 9.02) or in the absence of its own gross negligence or willful misconduct misconduct, as determined by the final judgment of a court of competent jurisdiction by final and nonappealable judgmentjurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the CompanyBorrower or any Lender, another Borrower, a Lender or an Issuing Lender. The and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewithwith any Loan Document, (iii) the performance or observance of any of the covenantscovenant, agreements agreement or other terms term or conditions condition set forth herein or therein in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere hereinin 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 uponor (vii) any property, and shall not incur book or record of 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, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender Loan Party or any Issuing LenderAffiliate thereof, provided, further that, the Administrative Agent may presume that such condition foregoing paragraph is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel solely for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties benefit of the Administrative Agent and not any such sub-agentLender. Each Lender agrees that, and shall apply to their respective activities in connection except with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, with the written consent of the Company (not to be unreasonably withheld or delayed), 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all paymentsit will not take any enforcement action hereunder or under any other Loan Document, communications and determinations provided accelerate the Obligations under any Loan Document, or exercise any right that it might otherwise have under applicable law or otherwise to be made bycredit bid at any foreclosure sale, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly until such time as the Required Lenders appointUCC sale, with the consent any sale under Section 363 of the Company (not to be unreasonably withheld Bankruptcy Code or delayed)other similar Dispositions of Collateral. Notwithstanding the foregoing, however, except as otherwise expressly limited herein, a successor Administrative Agent hereunder. Upon the acceptance of Lender may take action to preserve or enforce its appointment as Administrative Agent hereunder by rights against a successorLoan Party where a deadline or limitation period is applicable that would, absent such successor shall succeed to and become vested with all action, bar enforcement of the rightsObligations held by such Lender, powers, privileges and duties including the filing of a proof of claim in a case under the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed Bankruptcy Code. Notwithstanding anything to the retiring Administrative Agent as contrary contained herein or in any of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article Borrower, the Administrative Agent and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it was acting as being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms hereof and all powers, rights and remedies under the other Loan Documents may be exercised solely by the Administrative Agent and (ii) after such resignation for as long as in the event of a foreclosure by the Administrative Agent on any of them continues the Collateral pursuant to act a public or private sale or in any capacity hereunder or under the other Loan Documents, including in respect event of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, other Disposition (including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon 363 of the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting LenderBankruptcy Code), (aA) such successor shall succeed to the Administrative Agent, as agent for and become vested with all representative of the rightsSecured Parties, powersshall be entitled, privileges for the purpose of bidding and duties making settlement or payment of the retiring Issuing Xxxxxxpurchase price for all or any portion of the Collateral sold at any such sale, (b) to use and apply all or any portion of the retiring Issuing Lender shall be discharged from all Obligations as a credit on account of their respective duties and obligations hereunder or under the other Loan Documents purchase price for any Collateral payable by the Administrative Agent at such Disposition and (cB) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender may be the purchaser or licensor of all or any portion of their Related Parties and based on such documents and information Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as it has deemed appropriate, made its own credit analysis and decision to enter into such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not Lenders hereby irrevocably authorizes (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is and by entering into a Disqualified Institution or (y) have any liability Hedge Agreement with respect to or arising out any Secured Hedging Obligation and/or by entering into documentation in connection with any Banking Services Obligation, each of any assignment or participation the other Secured Parties hereby authorizes and shall be deemed to authorize) the Administrative Agent, on behalf of Loans, or disclosure of confidential informationall Secured Parties, to take any Disqualified Institution. It is agreed that of the Syndication Agent, following actions upon the Co-Documentation Agents and instruction of the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.Required Lenders:
Appears in 1 contract
Samples: First Lien Credit Agreement (Isos Acquisition Corp.)
The Administrative Agent. Each of the Lenders Participants and the Issuing Lenders Bank hereby irrevocably appoints Citibankthe Administrative Agent (for purposes of this Article VIII, the Administrative Agent is referred to as Administrative the “Agent, ”) to act on its behalf as the Administrative Agent hereunder and under the other Loan Credit 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 and thereofof the Credit Documents, together with such actions and powers as are reasonably incidental thereto. Except with respect to Without limiting the consent rights generality of the Company relating foregoing, each of the Issuing Bank and each Participant (a) expressly authorizes and instructs the Agent to a successor agent as set forth below, enter into the Intercreditor Agreement and (b) hereby agrees that it will be bound by the provisions of the Intercreditor Agreement. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, Participants and the Issuing Lenders Bank, and neither the Borrowers Company nor any other Credit Party shall not have rights as a third 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 Credit 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 Lawlaw. 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 Person bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender Participant as any other Lender Participant and may exercise the same as though it were not the Administrative Agent Agent, and 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 such bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for for, and generally engage in any kind of business with the Borrowers Company, Xxxx Corp. or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor therefore to the LendersParticipants. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Credit Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing, (b) the 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 Credit Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders Participants (or such other number or percentage of the Lenders Participants as shall be necessary under the circumstances as provided in Sections 7.02 and 9.02), Section 9.08) provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Credit Document or applicable Lawlaw, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Bankruptcy Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender Participant in violation of any Debtor Relief Bankruptcy Law, and (c) shall not, except as expressly set forth herein and or in the other Loan Credit Documents, the Agent shall not have any duty to disclose, and nor shall not it be liable for the failure to disclose, any information relating to the Company Company, Xxxx Corp. or any of its the Subsidiaries that is communicated to or obtained by the Person 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 Participants (or such other number or percentage of the Lenders Participants as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 7.02 and 9.02Section 9.08) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof describing such Default is given to the Administrative Agent in writing by the Company, another BorrowerXxxx Corp. or a Participant, a Lender or an Issuing Lender. The Administrative and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of in any DefaultCredit Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Credit Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere hereinin any Credit 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, signed or sent or otherwise authenticated by the proper Personperson. The Administrative Agent may also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Personperson, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender Participant or any the Issuing LenderBank, the Administrative Agent may presume that such condition is satisfactory to such Lender Participant or such Issuing Lender Bank unless the Administrative Agent shall have received notice to the contrary from such Lender Participant or such Issuing Lender Bank prior to the making of such Loan or the issuance, extension, renewal or increase issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the BorrowersCompany), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder and under any other Loan Credit Document by or through any one or more sub-agents appointed by the Administrative Agentit. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article 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 agent as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. agents The Administrative Agent may resign at any time by notifying give notice of its resignation to the LendersParticipants, the Issuing Lenders Bank and the Company. Upon receipt of any such notice of resignation, the Required Lenders Participants shall have the right, in consultation with the consent of the Company (not to be unreasonably withheld or delayed)Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders Participants and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignationresignation (or such earlier date as shall be agreed by the Required Participants)( the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to), on behalf of the Lenders Participants and the Issuing LendersBank, appoint, with the consent of the Company (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) . Whether or not a successor has been appointed, such resignation shall become effective in no event shall any accordance with such successor Administrative notice on the Resignation Effective Date. If the person serving as Agent be is a Defaulting Lender or Disqualified Institution and Participant pursuant to clause (yd) if of the Administrative Agent shall notify definition thereof, the Required Participants may, to the extent permitted by applicable law, by notice in writing to the Company and such Person remove such person as Agent and, in consultation with the Lenders that Company, appoint a successor. If no qualifying Person has such successor shall have been so appointed by the Required Participants and shall have accepted such appointmentappointment within 30 days (or such earlier day as shall be agreed by the Required Participants) (the “Removal Effective Date”), then such resignation removal shall nonetheless become effective in accordance with such notice and on the Removal Effective Date. With effect from the Resignation Effective Date or the Removal Effective Date (aas applicable) (1) the retiring Administrative or removed Agent shall be discharged from its duties and obligations hereunder and under the other Loan Credit Documents and (b2) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender Participant and each the Issuing Lender directly Bank directly, until such time time, if any, as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), Participants appoint a successor Administrative Agent hereunderas provided for above. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date)removed Agent, and the retiring Administrative or removed Agent shall be discharged from its duties and obligations hereunder and or under the other Loan Credit Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative retiring or removed Agent’s resignation or removal hereunder and under the other Loan Credit Documents, the provisions of this Article and Section 9.03 9.05 shall continue in effect for the benefit of such retiring Administrative or removed 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 (i) it the retiring or removed Agent was acting as Administrative Agent and (ii) after such resignation for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Each Participant and Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Xxxxxxx Xxxxxx and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the appointment by the Company of a successor Xxxxxxx Xxxxxx hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Xxxxxx, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Xxxxxxx Xxxxxx shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing Lender Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender Participant or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender Participant and each Issuing Lender Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any other their Related Parties Participant and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Loan Document or Credit Document, any related agreement or any document furnished hereunder or thereunder. The Administrative Agent Anything herein to the contrary notwithstanding, the Arranger listed on the cover page hereof shall not be responsible or have any liability forpowers, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.Agreement or any of the other Credit Documents, except in its capacity, as applicable, as the Agent, a Participant or an Issuing Bank hereunder. In case of the pendency of any proceeding under any Bankruptcy Law, the Agent (irrespective of whether the principal of any L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Agent shall have made any demand on the Company) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:
Appears in 1 contract
Samples: Letter of Credit Facility Agreement (Vistancia Marketing, LLC)