The Administrative Agents. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent and, as applicable, the Canadian Administrative Agent, as its agent and authorizes each of the Administrative Agents to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Applicable Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Each bank serving as the Administrative Agent or Canadian 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 or Canadian Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the Administrative Agent or Canadian Administrative Agent hereunder. Neither of the Administrative Agents shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) neither of the Administrative Agents shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) neither of the Administrative Agents shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth in the Loan Documents, neither of the Administrative Agents shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by such bank serving as the Administrative Agent of Canadian Administrative Agent or any of its Affiliates in any capacity. Neither of the Administrative Agents shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. Neither of the Administrative Agents shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Person by the Borrower Representative or a Lender, and such Person shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Applicable Administrative Agent. Each of the Administrative Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Administrative Agents 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. Each of the Administrative Agents may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Administrative Agents may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Person. Each of the Administrative Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each of the Administrative Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent or Canadian Administrative Agent. Subject to the appointment and acceptance of a successor Applicable Administrative Agent as provided in this paragraph, each of the Administrative Agents may resign at any time by notifying the Lenders, the Issuing Banks and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrowers (unless an Event of Default shall have occurred and be continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and consented to by the Borrower (unless an Event of Default shall have occurred and be continuing) and shall have accepted such appointment within 30 days after the retiring agent gives notice of its resignation, then the retiring agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent or Canadian Administrative Agent, as applicable, which shall be a commercial bank or an Affiliate of any such commercial bank. Upon the acceptance of its appointment as an Administrative Agent or Canadian Administrative Agent, as applicable, hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent or Canadian Administrative Agent, as applicable,, and the retiring Administrative Agent or Canadian Administrative Agent, as applicable, shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent or Canadian Administrative Agent, as applicable, shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an Administrative Agent or Canadian Administrative Agent, as applicable, resigns hereunder, the provisions of this Article, Section 2.17(d) and Section 9.03 shall continue in effect for the benefit of such retiring Person, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an Applicable Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon either of the Administrative Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon either of the Administrative Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. 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 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 each Applicable Administrative Agent or such other Person as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. The Syndication Agent, each Co-Documentation Agent and each Joint Lead Arranger and Joint Bookrunner shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.

Appears in 2 contracts

Samples: Credit Agreement (Levi Strauss & Co), Credit Agreement (Levi Strauss & Co)

The Administrative Agents. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent and, as applicable, the Canadian Administrative Agent, as its agent and authorizes each of the Administrative Agents to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Applicable Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Each bank serving as the Administrative Agent or Canadian 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 or Canadian Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the Administrative Agent or Canadian Administrative Agent hereunder. Neither of the Administrative Agents shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) neither of the Administrative Agents shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) neither of the Administrative Agents shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth in the Loan Documents, neither of the Administrative Agents shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by such bank serving as the Administrative Agent of Canadian Administrative Agent or any of its Affiliates in any capacity. Neither of the Administrative Agents shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. Neither of the Administrative Agents shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Person by the Borrower Representative or a Lender, and such Person shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Applicable Administrative Agent. Each of the Administrative Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Administrative Agents 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. Each of the Administrative Agents may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Administrative Agents may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Person. Each of the Administrative Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each of the Administrative Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent or Canadian Administrative Agent. Subject to the appointment and acceptance of a successor Applicable Administrative Agent as provided in this paragraph, each of the Administrative Agents may resign at any time by notifying the Lenders, the Issuing Banks and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrowers (unless an Event of Default shall have occurred and be continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and consented to by the Borrower (unless an Event of Default shall have occurred and be continuing) and shall have accepted such appointment within 30 days after the retiring agent gives notice of its resignation, then the retiring agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent or Canadian Administrative Agent, as applicable, which shall be a commercial bank or an Affiliate of any such commercial bank. Upon the acceptance of its appointment as an Administrative Agent or Canadian Administrative Agent, as applicable, hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent or Canadian Administrative Agent, as applicable,, and the retiring Administrative Agent or Canadian Administrative Agent, as applicable, shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent or Canadian Administrative Agent, as applicable, shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an Administrative Agent or Canadian Administrative Agent, as applicable, resigns hereunder, the provisions of this Article, Section 2.17(d) and Section 9.03 shall continue in effect for the benefit of such retiring Person, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an Applicable Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon either of the Administrative Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon either of the Administrative Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. 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 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 each Applicable Administrative Agent or such other Person as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. ~~The~~ Each Co-Syndication Agent, each Co-Documentation Agent and each Joint Lead Arranger and Joint Bookrunner shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.

Appears in 2 contracts

Samples: Credit Agreement (Levi Strauss & Co), Credit Agreement (Levi Strauss & Co)

The Administrative Agents. In order to expedite the transactions contemplated by this Agreement, each of JPMorgan Chase Bank, N.A. and Citibank, N.A. is hereby appointed to act as an Administrative Agent on behalf of the Lenders and CBNA is hereby appointed to act as Advance Agent on behalf of the Lenders. Each of the Lenders ~~and each of the Issuing Banks~~ hereby irrevocably ~~appoints the~~ authorizes each Administrative Agent ~~and~~(which term, ~~as applicable~~for purposes of this Article VII, shall be deemed to include the ~~Canadian Administrative~~ Advance Agent~~, as its agent and authorizes each of the Administrative Agents~~ ) to take such actions on ~~its behalf, including execution~~ behalf of ~~the other Loan Documents,~~ such Lender or holder and to exercise such powers as are specifically delegated to the ~~Applicable~~ Administrative Agents or an Administrative Agent individually, as the case may be, by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. ~~Each bank serving~~ CBNA 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 or any Borrowing Subsidiary of any Event of Default of which CBNA 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 Borrowing Subsidiary pursuant to this Agreement as received by CBNA. Notwithstanding any provision to the contrary elsewhere in this Agreement, neither Administrative Agent or Canadian 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 or Canadian Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the Administrative Agent or Canadian Administrative Agent hereunder. Neither of the Administrative Agents shall have any duties or ~~obligations~~ responsibilities, except those expressly set forth ~~in the~~ herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan ~~Documents~~Document or otherwise exist against either Administrative Agent. ~~Without limiting the generality of~~ Notwithstanding the foregoing, ~~(a) neither~~ JPMCB shall have no duties under the Loan Documents in its capacity as Administrative Agent and none of the ~~Administrative Agents shall be subject to any fiduciary~~ Documentation Agents, Syndication Agent, Joint Lead Arrangers or ~~other implied duties, regardless of whether a Default has occurred and is continuing, (b) neither of~~ Bookrunners listed on the ~~Administrative Agents~~ cover page hereof shall have any ~~duty to take any discretionary action or exercise any discretionary~~ powers, ~~except discretionary rights and powers expressly contemplated by the Loan Documents that the Applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (~~duties or ~~such other number~~ responsibilities under this Agreement or ~~percentage~~ any of the ~~Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth in the~~ other Loan Documents, ~~neither of the~~ except in its capacity, as an agent or a Lender. Neither Administrative ~~Agents shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or~~ Agent nor any of ~~its Subsidiaries that is communicated to or obtained by such bank serving as the Administrative Agent of Canadian Administrative Agent or~~ their respective affiliates nor any of ~~its Affiliates in any capacity. Neither of the Administrative Agents~~ their or their respective affiliates’ directors, officers, employees, agents, advisors or attorneys-in-fact shall be liable for any action taken or ~~not~~ omitted to be taken by ~~it with the consent~~ any of them except for its or ~~at the request of the Required Lenders (~~his or ~~such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its~~ her own gross negligence or willful ~~misconduct. Neither~~ misconduct (as determined by a final and nonappealable decision of ~~the Administrative Agents shall be deemed to have knowledge~~ a court of ~~any Default unless and until written notice thereof is given to such Person by the Borrower Representative~~ competent jurisdiction), or ~~a Lender, and such Person shall not~~ be responsible for ~~or have any duty to ascertain or inquire into (i)~~ any statement, warranty or representation ~~made in~~ herein or in any document delivered in connection ~~with any Loan Document, (ii)~~ herewith or the contents of any ~~certificate, report or other~~ document delivered ~~hereunder or~~ in connection ~~with~~ herewith, or be required to ascertain or to make any ~~Loan Document, (iii)~~ inquiry concerning the performance or observance by the Company or any Borrowing Subsidiary of any of the ~~covenants~~terms, conditions, covenants or agreements contained in this Agreement. The Administrative Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements or ~~other terms~~ for the failure of the Company or ~~conditions set forth in~~ any Borrowing Subsidiary to perform its obligations under this Agreement. The Administrative Agents may deem and treat the Lender which makes any Loan ~~Document, (iv)~~ as the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence holder of the ~~Collateral~~indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Administrative Agents shall in all cases be fully protected in acting, or ~~(vi)~~ refraining from acting, in accordance with written instructions signed by the ~~satisfaction of~~ Required Lenders and, except as otherwise specifically provided herein, such instructions and any ~~condition set forth in Article IV~~ action or ~~elsewhere in any Loan Document, other than to confirm receipt of items expressly required to~~ inaction pursuant thereto shall be ~~delivered to such Applicable Administrative Agent~~binding on all the Lenders. ~~Each of the~~ The Administrative Agents shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless they shall first receive such advice or concurrence of the Required Lenders (or, if so specified by this Agreement, all Lenders) as they deem appropriate or they shall first be indemnified to their satisfaction by the Lenders against any and all liability and expense that may be incurred by them by reason of taking or continuing to take any such action. The Administrative Agents shall, in the absence of knowledge to the contrary, be entitled to rely ~~upon, and shall not incur~~ on any ~~liability for relying upon, any notice, request, certificate, consent, statement, instrument,~~ instrument or document ~~or other writing~~ believed by it in good faith to be genuine and correct and to have been signed or sent by the proper ~~Person~~Person or Persons. ~~Each~~ Neither Administrative Agent nor any of their respective directors, officers, employees or agents shall have any responsibility to the Company or any Borrowing Subsidiary on account of the ~~Administrative Agents also may rely upon~~ failure of or delay in performance or breach by any ~~statement made~~ Lender of any of its obligations hereunder or 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. Each~~ Lender on account of the failure of or delay in performance or breach by any other Lender or the Company of any of their respective obligations hereunder or in connection herewith. The Administrative Agents may ~~consult with~~ execute any and all duties hereunder by or through their Affiliates, agents, attorneys-in-fact or employees and shall be entitled to rely upon the advice of legal counsel selected by them (~~who may be~~ including counsel ~~for~~ to the ~~Borrowers~~Company), independent accountants and other experts selected by ~~it,~~ them with respect to all matters arising hereunder and shall not be liable for any action taken or ~~not taken~~ suffered in good faith by it them in accordance with the advice of ~~any~~ such counsel. The Lenders hereby acknowledge that the Administrative Agents shall be under no duty to take any discretionary action permitted to be taken by them pursuant to the provisions of this Agreement unless they shall be requested in writing to do so by the Required Lenders. The Administrative Agents shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default unless the Administrative Agents have received notice from a Lender or the Company referring to this Agreement, ~~accountants~~ describing such Default or ~~experts~~Event of Default and stating that such notice is a “notice of default”. ~~Each~~ In the event that the Administrative Agents receive such a notice, the Administrative Agents shall give notice thereof to the Lenders. The Administrative Agents shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders (or, if so specified by this Agreement, all Lenders); provided that unless and until the Administrative Agents shall have received such directions, the Administrative Agents may ~~perform any and all~~ (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of ~~its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Person. Each~~ Default as it shall deem advisable in the best interests of the Lenders. Subject, in the case of a resignation of both Administrative Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each of the Administrative Agents and any such sub-agentAgents, 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 or Canadian Administrative Agent. Subject to the appointment and acceptance of a successor ~~Applicable~~ Administrative Agent as provided ~~in this paragraph~~below, ~~each of the~~ either Administrative ~~Agents~~ Agent may resign at any time by notifying the ~~Lenders, the Issuing Banks~~ Lenders and the ~~Borrower Representative~~Company. Upon any such ~~resignation~~resignation of both Administrative Agents, the Required Lenders shall have the ~~right, with the consent of the Borrowers (unless an Event of Default shall have occurred and be continuing),~~ right to appoint a ~~successor~~successor Administrative Agent acceptable to the Company. If no successor shall have been so appointed by the Required Lenders and ~~consented to by the Borrower (unless an Event of Default shall have occurred and be continuing) and~~ shall have accepted such appointment within 30 days after the retiring ~~agent gives~~ Administrative Agents give notice of ~~its~~ their resignation, then the retiring ~~agent~~ Administrative Agents may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ which shall be a ~~commercial~~ bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such ~~commercial~~ bank. Upon the acceptance of ~~its~~ any appointment as an Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ hereunder by a ~~successor~~successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agents and the retiring Administrative Agents shall be discharged from their duties and obligations hereunder. If only one of the Administrative Agents shall resign, the other Administrative Agent ~~or Canadian~~ shall become vested with all the rights, powers, privileges and duties of the retiring Administrative ~~Agent, as applicable,,~~ Agent and the retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrowers to a successor Administrative Agent or Canadian~~ After any Administrative Agent, as applicable, shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an Administrative Agent or Canadian Administrative Agent, as applicable, resigns ’s resignation hereunder, the provisions of this ~~Article, Section 2.17(d)~~ Article and Section ~~9.03~~ 8.5 shall continue in effect for ~~the~~ its benefit ~~of such retiring Person, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as ~~an Applicable~~ Administrative Agent. With respect to the Loans made by them hereunder, each 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 an Administrative Agent, and such Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Administrative Agent. Each Lender agrees (i) to reimburse the Administrative Agents, on demand, in the amount of its Applicable Percentage of any expenses incurred for the benefit of the Lenders by the Administrative Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Company and (ii) to indemnify and hold harmless the Administrative Agents and any of their respective directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against either of them in its capacity as an Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by either of them under this Agreement to the extent the same shall not have been reimbursed by the Company; provided that no Lender shall be liable to any Administrative Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Administrative Agent or any of its directors, officers, employees or agents as determined by a final and nonappealable decision of a court of competent jurisdiction. Each Lender acknowledges that it has, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender or any of their respective affiliates or their or their respective affiliates’ directors, officers, employees, advisors or attorneys-in-fact and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender or any of their respective affiliates or their or their respective affiliates’ directors, officers, employees, advisors or attorneys-in-fact 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~~ related agreement or any document furnished hereunder or thereunder. ~~Each Lender hereby agrees that (a) it has requested a copy of each Report prepared~~ Except for notices, reports and other documents expressly required to be furnished to the Lenders by ~~or on behalf of~~ the Administrative ~~Agent; (b)~~ Agents hereunder, the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the 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 each Applicable Administrative Agent or such other Person as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. The Syndication Agent, each Co-Documentation Agent and each Joint Lead Arranger and Joint Bookrunner Agents shall not have any ~~right~~duty or responsibility to provide any Lender with any credit or other information concerning the business, ~~power~~operations, ~~obligation~~property, ~~liability~~condition (financial or otherwise), ~~responsibility~~ prospects or ~~duty under this Agreement other than those applicable to all Lenders as such~~creditworthiness of the Company or any Borrowing Subsidiary or any affiliate of the Company or any Borrowing Subsidiary that may come into the possession of the Administrative Agents or any of its officers, directors, employees, agents, advisors, attorneys in fact or affiliates.

Appears in 2 contracts

Samples: Five Year Competitive Advance and Revolving Credit Facility Agreement (Bristol Myers Squibb Co), Five Year Competitive Advance and Revolving Credit Facility Agreement (Bristol Myers Squibb Co)

The Administrative Agents. In order to expedite the transactions contemplated by this Agreement, each of JPMorgan Chase Bank, N.A. and Citicorp North America, Inc. is hereby appointed to act as an Administrative Agent on behalf of the Lenders and CNAI is hereby appointed to act as Advance Agent on behalf of the Lenders. Each of the Lenders ~~and each of the Issuing Banks~~ hereby irrevocably ~~appoints the~~ authorizes each Administrative Agent ~~and~~(which term, ~~as applicable~~for purposes of this Article VII, shall be deemed to include the ~~Canadian Administrative~~ Advance Agent~~, as its agent and authorizes each of the Administrative Agents~~ ) to take such actions on ~~its behalf, including execution~~ behalf of ~~the other Loan Documents,~~ such Lender or holder and to exercise such powers as are specifically delegated to the ~~Applicable~~ Administrative Agents or an Administrative Agent individually, as the case may be, by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. ~~Each bank serving~~ CNAI 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 or any Borrowing Subsidiary of any Event of Default of which CNAI 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 Borrowing Subsidiary pursuant to this Agreement as received by CNAI. Notwithstanding the ~~Administrative Agent or Canadian Administrative Agent hereunder~~ foregoing, JPMCB shall have no duties under the ~~same rights and powers~~ Loan Documents in its capacity as ~~a Lender as any other Lender and may exercise the same as though it were not the~~ Administrative Agent ~~or Canadian Administrative~~ and none of the Syndication Agent, ~~and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with~~ Joint Lead Arrangers or Bookrunners listed on the ~~Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the Administrative Agent or Canadian Administrative Agent hereunder. Neither of the Administrative Agents~~ cover page hereof shall have any powers, duties or ~~obligations except those expressly set forth in the Loan Documents. Without limiting the generality~~ responsibilities under this Agreement or any of the ~~foregoing, (a) neither of the Administrative Agents shall be subject to any fiduciary or~~ other implied duties, regardless of whether a Default has occurred and is continuing, (b) neither of the Administrative Agents shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth in the Loan Documents, ~~neither of the~~ except in its capacity, as an agent or a Lender. Neither Administrative ~~Agents shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or~~ Agent nor any of ~~its Subsidiaries that is communicated to~~ their respective directors, officers, employees or ~~obtained by such bank serving as the Administrative Agent of Canadian Administrative Agent or any of its Affiliates in any capacity. Neither of the Administrative Agents~~ agents shall be liable as such for any action taken or ~~not taken~~ omitted by ~~it with the consent~~ any of them except for its or ~~at the request of the Required Lenders (~~his or ~~such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its~~ her own gross negligence or willful misconduct~~. Neither of the Administrative Agents shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Person by the Borrower Representative~~ , or ~~a Lender, and such Person shall not~~ be responsible for ~~or have any duty to ascertain or inquire into (i)~~ any statement, warranty or representation ~~made in~~ herein or ~~in connection with any Loan Document, (ii)~~ the contents of any ~~certificate, report or other~~ document delivered ~~hereunder or~~ in connection ~~with~~ herewith, or be required to ascertain or to make any ~~Loan Document, (iii)~~ inquiry concerning the performance or observance by the Company or any Borrowing Subsidiary of any of the ~~covenants~~terms, conditions, covenants or agreements ~~or other terms or conditions set forth~~ contained in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Applicable Administrative Agentthis Agreement. ~~Each of the~~ The Administrative Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Administrative Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Administrative Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the 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. The Administrative Agents shall, in the absence of knowledge to the contrary, be entitled to rely ~~upon, and shall not incur~~ on any ~~liability for relying upon, any notice, request, certificate, consent, statement, instrument,~~ instrument or document ~~or other writing~~ believed by it in good faith to be genuine and correct and to have been signed or sent by the proper ~~Person~~Person or Persons. ~~Each~~ Neither Administrative Agent nor any of their respective directors, officers, employees or agents shall have any responsibility to the Company or any Borrowing Subsidiary on account of the ~~Administrative Agents also may rely upon~~ failure of or delay in performance or breach by any ~~statement made~~ Lender of any of its obligations hereunder or 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. Each~~ Lender on account of the failure of or delay in performance or breach by any other Lender or the Company of any of their respective obligations hereunder or in connection herewith. The Administrative Agents may ~~consult with~~ execute any and all duties hereunder by or through their Affiliates, agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for the Borrowers), independent accountants and other experts~~ selected by ~~it,~~ them with respect to all matters arising hereunder and shall not be liable for any action taken or ~~not taken~~ suffered in good faith by it them in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. ~~Each of~~ The Lenders hereby acknowledge that the Administrative Agents ~~may perform~~ shall be under no duty to take any ~~and all of its duties and exercise its rights and powers~~ discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed by such Person. Each of~~ them pursuant to the ~~Administrative Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory~~ provisions of this Agreement unless they shall be requested in writing to do so by the ~~preceding paragraphs shall apply to any such sub-agent and to~~ Required Lenders. Subject, in the ~~Related Parties~~ case of ~~each~~ a resignation of ~~the~~ both Administrative ~~Agents and any such sub-agent~~Agents, 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 or Canadian Administrative Agent. Subject to the appointment and acceptance of a successor ~~Applicable~~ Administrative Agent as provided ~~in this paragraph~~below, ~~each of the~~ either Administrative ~~Agents~~ Agent may resign at any time by notifying the ~~Lenders, the Issuing Banks~~ Lenders and the ~~Borrower Representative~~Company. Upon any such ~~resignation~~resignation of both Administrative Agents, the Required Lenders shall have the ~~right, with the consent of the Borrowers (unless an Event of Default shall have occurred and be continuing),~~ right to appoint a ~~successor~~successor Administrative Agent acceptable to the Company. If no successor shall have been so appointed by the Required Lenders and ~~consented to by the Borrower (unless an Event of Default shall have occurred and be continuing) and~~ shall have accepted such appointment within 30 days after the retiring ~~agent gives~~ Administrative Agents give notice of ~~its~~ their resignation, then the retiring ~~agent~~ Administrative Agents may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ which shall be a ~~commercial~~ bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such ~~commercial~~ bank. Upon the acceptance of ~~its~~ any appointment as an Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ hereunder by a ~~successor~~successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agents and the retiring Administrative Agents shall be discharged from their duties and obligations hereunder. If only one of the Administrative Agents shall resign, the other Administrative Agent ~~or Canadian~~ shall become vested with all the rights, powers, privileges and duties of the retiring Administrative ~~Agent, as applicable,,~~ Agent and the retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrowers to a successor Administrative Agent or Canadian~~ After any Administrative Agent, as applicable, shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an Administrative Agent or Canadian Administrative Agent, as applicable, resigns ’s resignation hereunder, the provisions of this ~~Article, Section 2.17(d)~~ Article and Section ~~9.03~~ 8.5 shall continue in effect for ~~the~~ its benefit ~~of such retiring Person, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as ~~an Applicable~~ Administrative Agent. With respect to the Loans made by them hereunder, each 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 an Administrative Agent, and such Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Administrative Agent. Each Lender agrees (i) to reimburse the Administrative Agents, on demand, in the amount of its Applicable Percentage of any expenses incurred for the benefit of the Lenders by the Administrative Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Company and (ii) to indemnify and hold harmless the Administrative Agents and any of their respective directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against either of them in its capacity as an Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by either of them under this Agreement to the extent the same shall not have been reimbursed by the Company; provided that no Lender shall be liable to any Administrative Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Administrative Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. 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 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 each Applicable Administrative Agent or such other Person as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. The Syndication Agent, each Co-Documentation Agent and each Joint Lead Arranger and Joint Bookrunner shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.

Appears in 2 contracts

The Administrative Agents. In order to expedite the transactions contemplated by this Agreement, each of Citibank, N.A. and JPMorgan Chase Bank, N.A. is hereby appointed to act as an Administrative Agent on behalf of the Lenders and CBNA is hereby appointed to act as Advance Agent on behalf of the Lenders. Each of the Lenders ~~and each of the Issuing Banks~~ hereby irrevocably ~~appoints the~~ authorizes each Administrative Agent ~~and~~(which term, ~~as applicable~~for purposes of this Article VII, shall be deemed to include the ~~Canadian Administrative~~ Advance Agent~~, as its agent and authorizes each of the Administrative Agents~~ ) to take such actions on ~~its behalf, including execution~~ behalf of ~~the other Loan Documents,~~ such Lender or holder and to exercise such powers as are specifically delegated to the ~~Applicable~~ Administrative Agents or an Administrative Agent individually, as the case may be, by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. ~~Each bank serving~~ CBNA 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 or any Borrowing Subsidiary of any Event of Default of which CBNA 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 Borrowing Subsidiary pursuant to this Agreement as received by CBNA. Notwithstanding any provision to the contrary elsewhere in this Agreement, neither Administrative Agent or Canadian 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 or Canadian Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the Administrative Agent or Canadian Administrative Agent hereunder. Neither of the Administrative Agents shall have any duties or ~~obligations~~ responsibilities, except those expressly set forth ~~in the~~ herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan ~~Documents~~Document or otherwise exist against either Administrative Agent. ~~Without limiting the generality of~~ Notwithstanding the foregoing, ~~(a) neither~~ JPMCB shall have no duties under the Loan Documents in its capacity as Administrative Agent and none of the ~~Administrative Agents shall be subject to any fiduciary~~ Documentation Agents, Joint Lead Arrangers or ~~other implied duties, regardless of whether a Default has occurred and is continuing, (b) neither of~~ Bookrunners listed on the ~~Administrative Agents~~ cover page hereof shall have any ~~duty to take any discretionary action or exercise any discretionary~~ powers, ~~except discretionary rights and powers expressly contemplated by the Loan Documents that the Applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (~~duties or ~~such other number~~ responsibilities under this Agreement or ~~percentage~~ any of the ~~Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth in the~~ other Loan Documents, ~~neither of the~~ except in its capacity, as an agent or a Lender. Neither Administrative ~~Agents shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or~~ Agent nor any of ~~its Subsidiaries that is communicated to or obtained by such bank serving as the Administrative Agent of Canadian Administrative Agent or~~ their respective affiliates nor any of ~~its Affiliates in any capacity. Neither of the Administrative Agents~~ their or their respective affiliates’ directors, officers, employees, agents, advisors or attorneys-in-fact shall be liable for any action taken or ~~not~~ omitted to be taken by ~~it with the consent~~ any of them except for its or ~~at the request of the Required Lenders (~~his or ~~such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its~~ her own gross negligence or willful ~~misconduct. Neither~~ misconduct (as determined by a final and nonappealable decision of ~~the Administrative Agents shall be deemed to have knowledge~~ a court of ~~any Default unless and until written notice thereof is given to such Person by the Borrower Representative~~ competent jurisdiction), or ~~a Lender, and such Person shall not~~ be responsible for ~~or have any duty to ascertain or inquire into (i)~~ any statement, warranty or representation ~~made in~~ herein or in any document delivered in connection ~~with any Loan Document, (ii)~~ herewith or the contents of any ~~certificate, report or other~~ document delivered ~~hereunder or~~ in connection ~~with~~ herewith, or be required to ascertain or to make any ~~Loan Document, (iii)~~ inquiry concerning the performance or observance by the Company or any Borrowing Subsidiary of any of the ~~covenants~~terms, conditions, covenants or agreements contained in this Agreement. The Administrative Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements or ~~other terms~~ for the failure of the Company or ~~conditions set forth in~~ any Borrowing Subsidiary to perform its obligations under this Agreement. The Administrative Agents may deem and treat the Lender which makes any Loan ~~Document, (iv)~~ as the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence holder of the ~~Collateral~~indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Administrative Agents shall in all cases be fully protected in acting, or ~~(vi)~~ refraining from acting, in accordance with written instructions signed by the ~~satisfaction of~~ Required Lenders and, except as otherwise specifically provided herein, such instructions and any ~~condition set forth in Article IV~~ action or ~~elsewhere in any Loan Document, other than to confirm receipt of items expressly required to~~ inaction pursuant thereto shall be ~~delivered to such Applicable Administrative Agent~~binding on all the Lenders. ~~Each of the~~ The Administrative Agents shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless they shall first receive such advice or concurrence of the Required Lenders (or, if so specified by this Agreement, all Lenders) as they deem appropriate or they shall first be indemnified to their satisfaction by the Lenders against any and all liability and expense that may be incurred by them by reason of taking or continuing to take any such action. The Administrative Agents shall, in the absence of knowledge to the contrary, be entitled to rely ~~upon, and shall not incur~~ on any ~~liability for relying upon, any notice, request, certificate, consent, statement, instrument,~~ instrument or document ~~or other writing~~ believed by it in good faith to be genuine and correct and to have been signed or sent by the proper ~~Person~~Person or Persons. ~~Each~~ Neither Administrative Agent nor any of their respective directors, officers, employees or agents shall have any responsibility to the Company or any Borrowing Subsidiary on account of the ~~Administrative Agents also may rely upon~~ failure of or delay in performance or breach by any ~~statement made~~ Lender of any of its obligations hereunder or 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. Each~~ Lender on account of the failure of or delay in performance or breach by any other Lender or the Company of any of their respective obligations hereunder or in connection herewith. The Administrative Agents may ~~consult with~~ execute any and all duties hereunder by or through their Affiliates, agents, attorneys-in-fact or employees and shall be entitled to rely upon the advice of legal counsel selected by them (~~who may be~~ including counsel ~~for~~ to the ~~Borrowers~~Company), independent accountants and other experts selected by ~~it,~~ them with respect to all matters arising hereunder and shall not be liable for any action taken or ~~not taken~~ suffered in good faith by it them in accordance with the advice of ~~any~~ such counsel. The Lenders hereby acknowledge that the Administrative Agents shall be under no duty to take any discretionary action permitted to be taken by them pursuant to the provisions of this Agreement unless they shall be requested in writing to do so by the Required Lenders. The Administrative Agents shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default unless the Administrative Agents have received notice from a Lender or the Company referring to this Agreement, ~~accountants~~ describing such Default or ~~experts~~Event of Default and stating that such notice is a “notice of default”. ~~Each~~ In the event that the Administrative Agents receive such a notice, the Administrative Agents shall give notice thereof to the Lenders. The Administrative Agents shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders (or, if so specified by this Agreement, all Lenders); provided that unless and until the Administrative Agents shall have received such directions, the Administrative Agents may ~~perform any and all~~ (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of ~~its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Person. Each~~ Default as it shall deem advisable in the best interests of the Lenders. Subject, in the case of a resignation of both Administrative Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each of the Administrative Agents and any such sub-agentAgents, 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 or Canadian Administrative Agent. Subject to the appointment and acceptance of a successor ~~Applicable~~ Administrative Agent as provided ~~in this paragraph~~below, ~~each of the~~ either Administrative ~~Agents~~ Agent may resign at any time by notifying the ~~Lenders, the Issuing Banks~~ Lenders and the ~~Borrower Representative~~Company. Upon any such ~~resignation~~resignation of both Administrative Agents, the Required Lenders shall have the ~~right, with the consent of the Borrowers (unless an Event of Default shall have occurred and be continuing),~~ right to appoint a ~~successor~~successor Administrative Agent acceptable to the Company. If no successor shall have been so appointed by the Required Lenders and ~~consented to by the Borrower (unless an Event of Default shall have occurred and be continuing) and~~ shall have accepted such appointment within 30 days after the retiring ~~agent gives~~ Administrative Agents give notice of ~~its~~ their resignation, then the retiring ~~agent~~ Administrative Agents may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ which shall be a ~~commercial~~ bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such ~~commercial~~ bank. Upon the acceptance of ~~its~~ any appointment as an Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ hereunder by a ~~successor~~successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agents and the retiring Administrative Agents shall be discharged from their duties and obligations hereunder. If only one of the Administrative Agents shall resign, the other Administrative Agent ~~or Canadian~~ shall become vested with all the rights, powers, privileges and duties of the retiring Administrative ~~Agent, as applicable,,~~ Agent and the retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrowers to a successor Administrative Agent or Canadian~~ After any Administrative Agent, as applicable, shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an Administrative Agent or Canadian Administrative Agent, as applicable, resigns ’s resignation hereunder, the provisions of this ~~Article, Section 2.17(d)~~ Article and Section ~~9.03~~ 8.5 shall continue in effect for ~~the~~ its benefit ~~of such retiring Person, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as ~~an Applicable~~ Administrative Agent. With respect to the Loans made by them hereunder, each 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 an Administrative Agent, and such Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Administrative Agent. Each Lender agrees (i) to reimburse the Administrative Agents, on demand, in the amount of its Applicable Percentage of any expenses incurred for the benefit of the Lenders by the Administrative Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Company and (ii) to indemnify and hold harmless the Administrative Agents and any of their respective directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against either of them in its capacity as an Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by either of them under this Agreement to the extent the same shall not have been reimbursed by the Company; provided that no Lender shall be liable to any Administrative Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Administrative Agent or any of its directors, officers, employees or agents as determined by a final and nonappealable decision of a court of competent jurisdiction. Each Lender acknowledges that it has, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender or any of their respective affiliates or their or their respective affiliates’ directors, officers, employees, advisors or attorneys-in-fact and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender or any of their respective affiliates or their or their respective affiliates’ directors, officers, employees, advisors or attorneys-in-fact 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~~ related agreement or any document furnished hereunder or thereunder. ~~Each Lender hereby agrees that (a) it has requested a copy of each Report prepared~~ Except for notices, reports and other documents expressly required to be furnished to the Lenders by ~~or on behalf of~~ the Administrative ~~Agent; (b)~~ Agents hereunder, the Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the 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 each Applicable Administrative Agent or such other Person as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. The Syndication Agent, each Co-Documentation Agent and each Joint Lead Arranger and Joint Bookrunner Agents shall not have any ~~right~~duty or responsibility to provide any Lender with any credit or other information concerning the business, ~~power~~operations, ~~obligation~~property, ~~liability~~condition (financial or otherwise), ~~responsibility~~ prospects or ~~duty under this Agreement other than those applicable to all Lenders as such~~creditworthiness of the Company or any Borrowing Subsidiary or any affiliate of the Company or any Borrowing Subsidiary that may come into the possession of the Administrative Agents or any of its officers, directors, employees, agents, advisors, attorneys in fact or affiliates.

Appears in 2 contracts

The Administrative Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as the General Administrative Agent on behalf of the U.S. Lenders, JPMorgan Chase Bank, Tokyo Branch is hereby appointed to act as Japanese Administrative Agent on behalf of the Japanese Lenders, J.X. Xxxxxx Europe Limited is hereby appointed to act as European Administrative Agent on behalf of the Multicurrency Lenders and JPMCB is hereby appointed to act as Advance Agent on behalf of the Lenders. Each of the Lenders ~~and each of the Issuing Banks~~ hereby irrevocably ~~appoints the~~ authorizes each Administrative Agent ~~and~~(which term, ~~as applicable,~~ for purposes of this Article XII shall be deemed to include the ~~Canadian Administrative~~ Advance Agent~~, as its agent and authorizes each of the Administrative Agents~~ ) to take such actions on ~~its behalf, including execution~~ behalf of ~~the other Loan Documents,~~ such Lender or holder and to exercise such powers as are specifically delegated to the ~~Applicable~~ Administrative Agents or an Administrative Agent individually, as the case may be, by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. Each ~~bank serving as the~~ Administrative Agent ~~or Canadian Administrative Agent hereunder shall have~~ is hereby expressly authorized by the ~~same rights and powers in its capacity as a Lender as~~ Lenders, without hereby limiting any other Lender and may exercise the same as though it were not the Administrative Agent or Canadian Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the Administrative Agent or Canadian Administrative Agent hereunder. Neither of the Administrative Agents shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoingimplied authority, (a) ~~neither~~ to receive on behalf of the ~~Administrative Agents shall be subject~~ Lenders all payments of principal of and interest on the Loans, payments in respect of the Letters of Credit and all other amounts due to ~~any fiduciary or other implied duties~~the Lenders hereunder, ~~regardless~~ and promptly to distribute to each Lender its proper share of ~~whether a Default has occurred and is continuing,~~ each payment so received; (b) ~~neither~~ to give notice on behalf of the Administrative Agents shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage each of the Lenders ~~as shall be necessary under~~ to the ~~circumstances as provided~~ Credit Parties of any Event of Default of which such Administrative Agent has actual knowledge acquired in ~~Section 9.02),~~ connection with its agency hereunder; and (c) ~~except~~ to distribute to each Lender copies of all notices, financial statements and other materials delivered by any Credit Party pursuant to this Agreement as ~~expressly set forth in the Loan Documents, neither of~~ received by such Administrative Agent. Neither the Administrative Agents ~~shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or~~ nor any of ~~its Subsidiaries that is communicated to~~ their respective directors, officers, employees or ~~obtained by such bank serving as the Administrative Agent of Canadian Administrative Agent or any of its Affiliates in any capacity. Neither of the Administrative Agents~~ agents shall be liable as such for any action taken or ~~not taken~~ omitted by ~~it with the consent~~ any of them except for its or ~~at the request of the Required Lenders (~~his or ~~such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its~~ her own gross negligence or ~~willful~~ wilful misconduct~~. Neither of the Administrative Agents shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Person by the Borrower Representative~~ , or ~~a Lender, and such Person shall not~~ be responsible for ~~or have any duty to ascertain or inquire into (i)~~ any statement, warranty or representation ~~made in~~ herein or ~~in connection with any Loan Document, (ii)~~ the contents of any ~~certificate, report or other~~ document delivered ~~hereunder or~~ in connection ~~with~~ herewith, or be required to ascertain or to make any ~~Loan Document, (iii)~~ inquiry concerning the performance or observance by any Borrower of any of the ~~covenants~~terms, conditions, covenants or agreements ~~or other terms or conditions set forth~~ contained in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Applicable Administrative Agentthis Agreement. ~~Each of the~~ The Administrative Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Administrative Agents may deem and treat the Lender which makes any Loan or issues or participates in any Letter of Credit as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Administrative Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the 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. The Administrative Agents shall, in the absence of knowledge to the contrary, be entitled to rely ~~upon, and shall not incur~~ on any ~~liability for relying upon, any notice, request, certificate, consent, statement, instrument,~~ instrument or document ~~or other writing~~ believed by it in good faith to be genuine and correct and to have been signed or sent by the proper ~~Person~~Person or Persons. ~~Each of~~ Neither the Administrative Agents ~~also may rely upon~~ nor any ~~statement made~~ of their respective directors, officers, employees or agents shall have any responsibility 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. Each~~ Borrower on account of the failure of or delay in performance or breach by any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. The Administrative Agents may ~~consult with~~ execute any and all duties hereunder by or through their Affiliates, agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for the Borrowers), independent accountants and other experts~~ selected by ~~it,~~ them with due care with respect to all matters arising hereunder and shall not be liable for any action taken or ~~not taken~~ suffered in good faith by it them in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. ~~Each of~~ The Lenders hereby acknowledge that the Administrative Agents ~~may perform~~ shall be under no duty to take any ~~and all of its duties and exercise its rights and powers~~ discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed by such Person. Each of~~ them pursuant to the ~~Administrative Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory~~ provisions of this Agreement unless they shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each of the Administrative Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent or Canadian Administrative AgentRequired Lenders. Subject to the appointment and acceptance of a successor ~~Applicable~~ Administrative Agent as provided ~~in this paragraph~~below, ~~each of the~~ any Administrative ~~Agents~~ Agent may resign at any time by notifying the Lenders, the ~~Issuing Banks~~ other Administrative Agents and the ~~Borrower Representative~~Company. Upon any such ~~resignation~~resignation of an Administrative Agent, the Required Lenders shall have the ~~right, with the consent of the Borrowers (unless an Event of Default shall have occurred and be continuing),~~ right to appoint a ~~successor~~successor Administrative Agent acceptable to the Company. If no successor shall have been so appointed by the Required Lenders and ~~consented to by the Borrower (unless an Event of Default shall have occurred and be continuing) and~~ shall have accepted such appointment within 30 days after the retiring ~~agent~~ Administrative Agent gives notice of its resignation, then the retiring ~~agent~~ Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ which shall be a ~~commercial~~ bank having a combined capital and surplus of at least $500,000,000 (or an any Affiliate of ~~any~~ such ~~commercial~~ bank), (i) with, in the case of the U.S. Commitments, an office in New York, New York, (ii) with, in the case of the Japanese Commitments, an office in Tokyo, Japan, or (iii) with, in the case of the Multicurrency Commitments, an office in London. Upon the acceptance of ~~its~~ any appointment as an Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ hereunder by a ~~successor~~successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,,~~ and the retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrowers to a successor Administrative Agent or Canadian~~ After any Administrative Agent, as applicable, shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an Administrative Agent or Canadian Administrative Agent, as applicable, resigns ’s resignation hereunder, the provisions of this ~~Article, Section 2.17(d)~~ Article XII and Section ~~9.03~~ 13.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Person, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as ~~an Applicable~~ Administrative Agent. With respect to the Loans made by, or Letters of Credit issued by or participated in by, them hereunder, each 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 an Administrative Agent, and such Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Administrative Agent. Each Lender agrees (i) to reimburse the Administrative Agents, on demand, in the amount of its pro rata share of any expenses incurred for the benefit of the Lenders by the Administrative Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (ii) to indemnify and hold harmless the Administrative Agents and any of their respective directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against either of them in its capacity as an Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by either of them under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Administrative Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or wilful misconduct of such Administrative Agent or any of its directors, officers, employees or agents. For purposes hereof, a Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate Revolving Credit Exposure, outstanding Term Loans and unused Commitments at the time. Each Lender acknowledges that it has, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon either of the Administrative Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. 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 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 each Applicable Administrative Agent or such other Person as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. The Syndication Agent, each Co-Documentation Agent and each Joint Lead Arranger and Joint Bookrunner shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.this

Appears in 1 contract

Samples: Revolving Credit and Term Loan Agreement (Zimmer Holdings Inc)

The Administrative Agents. Each of the Lenders ~~and each of the Issuing Banks~~ hereby irrevocably appoints ~~the~~ each Administrative Agent ~~and, as applicable, the Canadian Administrative Agent,~~ as its agent hereunder and authorizes each ~~of the~~ Administrative ~~Agents~~ Agent to take such actions on its ~~behalf, including execution of the other Loan Documents,~~ behalf and to exercise such powers as are delegated to ~~the Applicable~~ such Administrative Agent by the terms ~~of the Loan Documents~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. ~~Each bank~~ The Person serving as the U.S. Administrative Agent or the Canadian 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 or Canadian~~ an Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Loan Parties~~ either Borrower or any Subsidiary ~~of a Loan Party~~ or other Affiliate thereof as if it were not ~~the Administrative Agent or Canadian~~ an Administrative Agent hereunder. Neither ~~of the~~ Administrative ~~Agents~~ Agent shall have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, (a) neither ~~of the~~ Administrative ~~Agents~~ Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) neither ~~of the~~ Administrative ~~Agents~~ Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that ~~the Applicable~~ such Administrative Agent is required to exercise in writing ~~as directed~~ by the Required ~~Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02)~~Lenders, and (c) except as expressly set forth ~~in the Loan Documents~~herein, neither ~~of the~~ Administrative ~~Agents~~ Agent shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any Loan Party~~ either Borrower or any of its Subsidiaries that is communicated to or obtained by ~~such~~ the bank serving as ~~the Administrative Agent of Canadian~~ Administrative Agent or any of its Affiliates in any capacity. Neither ~~of the~~ Administrative ~~Agents~~ Agent shall 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~~ except to the extent found by a final, non-appealable judgment of a court to arise from the ~~Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own~~ gross negligence or willful misconduct). Neither ~~of the~~ Administrative ~~Agents~~ Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such ~~Person~~ Administrative Agent by the ~~Borrower Representative~~ Company or a Lender, and such ~~Person~~ Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document~~this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection ~~with any Loan Document~~herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document, or (v~~) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vi~~) the satisfaction of any condition set forth in Article IV V or elsewhere ~~in any Loan Document~~herein or therein, other than to confirm receipt of items expressly required to be delivered to ~~such Applicable~~ the Administrative ~~Agent~~Agents. Each ~~of the~~ Administrative ~~Agents~~ Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each ~~of the~~ Administrative ~~Agents~~ 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. Each ~~of the~~ Administrative ~~Agents~~ Agent may consult with legal counsel (who may be counsel for ~~the Borrowers~~a Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each ~~of the~~ Administrative ~~Agents~~ Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such ~~Person~~Administrative Agent. Each ~~of the~~ Administrative ~~Agents~~ Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each ~~of the~~ Administrative ~~Agents~~ 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 or Canadian~~ Administrative Agent. Subject to the appointment and acceptance of a successor ~~Applicable~~ Administrative Agent as provided in this paragraph, ~~each of the~~ either Administrative ~~Agents~~ Agent may resign at any time by notifying the ~~Lenders, the Issuing Banks~~ Lenders and the ~~Borrower Representative~~Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrowers (unless an Event of Default shall have occurred and be continuing)~~Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and ~~consented to by the Borrower (unless an Event of Default shall have occurred and be continuing) and~~ shall have accepted such appointment within 30 days after the retiring ~~agent~~ Administrative Agent gives notice of its resignation, then the retiring ~~agent~~ Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York or an affiliate of such bank and, in the case of the Canadian Administrative Agent, ~~as applicable~~shall also have an office in Toronto, ~~which shall be a commercial bank or an Affiliate of any such commercial bank~~Canada. Upon the acceptance of its appointment as an Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent ~~or Canadian Administrative Agent, as applicable,,~~ and the retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ shall be discharged from its duties and obligations ~~hereunder~~hereunder (if not already discharged therefrom as provided above in this paragraph). The fees payable by ~~the Borrowers~~ either Borrower to a successor Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ shall be the same as those payable to its predecessor unless otherwise agreed between ~~the Borrowers~~ such Borrower and such successor. After an Administrative ~~Agent or Canadian Administrative~~ Agent~~, as applicable, resigns~~ 's resignation hereunder, the provisions of this ~~Article, Section 2.17(d)~~ Article and Section 9.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring Person, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as ~~an Applicable~~ Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon either ~~of the~~ Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon either ~~of the~~ Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. 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 Notwithstanding anything herein to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the 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 againstcontrary, the ~~claims, actions, proceedings, damages, costs, expenses,~~ Joint Bookrunners and ~~other amounts (including reasonable attorney fees) incurred by each Applicable Administrative Agent or such other Person as~~ Joint Lead Arrangers and the ~~direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. The Syndication Agent, each~~ Co-~~Documentation Agent and each Joint Lead Arranger and Joint Bookrunner~~ Syndication Agents shall not have any ~~right, power, obligation, liability, responsibility~~ duties or ~~duty~~ liabilities under this ~~Agreement other than those applicable to all Lenders~~ Agreement, except in their capacity, if any, as ~~such~~Lenders.

Appears in 1 contract

Samples: Credit Agreement (Hertz Corp)

The Administrative Agents. Each of the Lenders and each ~~of the~~ Issuing ~~Banks~~ Bank hereby irrevocably appoints each of the Administrative ~~Agent and, as applicable, the Canadian Administrative Agent,~~ Agents as its agent and authorizes ~~each of~~ the Administrative Agents to take such actions on its behalf, including execution of the other Loan ~~Documents~~Documents to which an Administrative Agent is a party, and to exercise such powers as are delegated to ~~the Applicable~~ each such Administrative ~~Agent~~ Agent, respectively, by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Each bank serving as ~~the Administrative Agent or Canadian~~ an 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 or Canadian~~ an Administrative Agent, and such bank and its ~~Affiliates~~ Affiliates may accept deposits from, lend money to 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 or Canadian~~ an Administrative Agent hereunder. ~~Neither of the~~ No Administrative ~~Agents~~ Agent shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) ~~neither of the~~ an Administrative ~~Agents~~ Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~neither of the~~ an Administrative ~~Agents~~ Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that ~~the Applicable~~ such Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth in the Loan Documents, ~~neither of the~~ such Administrative ~~Agents~~ Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by ~~such~~ the bank serving as ~~the Administrative Agent of Canadian~~ an Administrative Agent or any of its Affiliates in any capacity. ~~Neither of the~~ An Administrative ~~Agents~~ Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. ~~Neither of the~~ An Administrative ~~Agents~~ Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such ~~Person~~ Administrative Agent by ~~the~~ a Borrower ~~Representative~~ or a Lender, and ~~such Person~~ the Administrative Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such ~~Applicable~~ Administrative Agent. Each ~~of the~~ Administrative ~~Agents~~ Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each ~~of the~~ Administrative ~~Agents~~ 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. Each ~~of the~~ Administrative ~~Agents~~ 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. Each ~~of the~~ Administrative ~~Agents~~ Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by ~~such Person~~each Administrative Agent. Each ~~of the~~ Administrative ~~Agents~~ Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of (i) each ~~of the~~ Administrative ~~Agents~~ Agent and (ii) 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 or Canadian~~ an Administrative Agent. Subject to the appointment and acceptance of a successor ~~Applicable~~ Administrative Agent as provided in this paragraph, ~~each of the~~ an Administrative ~~Agents~~ Agent may resign at any time by notifying the Lenders, the other Administrative Agents, the Issuing Banks and the ~~Borrower Representative~~Borrowing Representatives. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrowers (unless an Event of Default shall have occurred and be continuing)~~Borrowing Representatives, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and ~~consented to by the Borrower (unless an Event of Default shall have occurred and be continuing) and~~ shall have accepted such appointment within 30 days after the retiring ~~agent~~ Administrative Agent gives notice of its resignation, then ~~the~~ such retiring ~~agent~~ Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ which shall be a commercial bank with an office in New York, New York and/or a successor UK Administrative Agent which shall be a commercial bank with an office in London, England, as applicable, or an Affiliate of any such commercial bank. Upon the acceptance of its appointment as an Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative ~~Agent or Canadian Administrative~~ Agent, ~~as applicable,,~~ and ~~the~~ such retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an Administrative ~~Agent or Canadian Administrative~~ Agent~~, as applicable, resigns~~ ’s resignation hereunder, the provisions of this ~~Article, Section 2.17(d)~~ Article and Section 9.03 shall continue in effect for the benefit of such retiring ~~Person~~Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an ~~Applicable~~ Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon ~~either of~~ the Administrative Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon ~~either of~~ the Administrative Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Each Lender hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of ~~the~~ any Administrative Agent; (b) ~~the~~ each Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the 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~~ Agents undertake 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~~ each 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 ~~each Applicable Administrative Agent or such other Person~~ as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. ~~The Syndication Agent~~None of the rights or obligations of any Administrative Agent under any Loan Document may be amended, ~~each Co-Documentation~~ supplemented or otherwise modified without the prior written consent of such Administrative Agent and the Required Lenders. The UK Borrower has requested that the UK Administrative Agent provide daily advice on each ~~Joint Lead Arranger and Joint Bookrunner~~ UK Business Day setting forth the UK Availability. The UK Administrative Agent shall not have any liability if it fails to provide such advice on any day. In addition, to the extent the UK Administrative Agent provides such advice, the UK Administrative shall not have any liability to any party in connection with such advice, including but not limited to, whether the information in such advice is accurate. The designation of (i) J.X. Xxxxxx Securities Inc. as “Sole Bookrunner and Sole Lead Arranger”, and (ii) HSBC Bank USA, N.A. and Wxxxx Fargo Capital Finance, LLC as “syndication agent”, “documentation agent” or “Co-Agents” shall not confer upon any of such entities any right, power, obligation, liability, responsibility or duty under this Agreement. Without limiting the foregoing, none of the Lenders, or Affiliates thereof, so identified as a “co-agent”, “lead arranger”, “bookrunner” “syndication agent”, or “documentation agent” shall have or be deemed to have any fiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the parties so identified in deciding to enter into this Agreement ~~other than those applicable to all Lenders as such~~or in taking or not taking action hereunder.

Appears in 1 contract

Samples: Credit Agreement (Systemax Inc)

The Administrative Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as the General Administrative Agent on behalf of the U.S. Lenders, JPMorgan Chase Bank, N.A., Tokyo Branch is hereby appointed to act as Japanese Administrative Agent on behalf of the Japanese Lenders, J.X. Xxxxxx Europe Limited is hereby appointed to act as European Administrative Agent on behalf of the Multicurrency Lenders and JPMCB is hereby appointed to act as Advance Agent on behalf of the Lenders. Each of the Lenders ~~and each of the Issuing Banks~~ hereby irrevocably ~~appoints the~~ authorizes each Administrative Agent ~~and~~(which term, ~~as applicable,~~ for purposes of this Article XII shall be deemed to include the ~~Canadian Administrative~~ Advance Agent~~, as its agent and authorizes each of the Administrative Agents~~ ) to take such actions on ~~its behalf, including execution~~ behalf of ~~the other Loan Documents,~~ such Lender or holder and to exercise such powers as are specifically delegated to the ~~Applicable~~ Administrative Agents or an Administrative Agent individually, as the case may be, by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. Each ~~bank serving as the~~ Administrative Agent ~~or Canadian Administrative Agent hereunder shall have~~ is hereby expressly authorized by the ~~same rights and powers in its capacity as a Lender as~~ Lenders, without hereby limiting any other Lender and may exercise the same as though it were not the Administrative Agent or Canadian Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the Administrative Agent or Canadian Administrative Agent hereunder. Neither of the Administrative Agents shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoingimplied authority, (a) ~~neither~~ to receive on behalf of the ~~Administrative Agents shall be subject~~ Lenders all payments of principal of and interest on the Loans, payments in respect of the Letters of Credit and all other amounts due to ~~any fiduciary or other implied duties~~the Lenders hereunder, ~~regardless~~ and promptly to distribute to each Lender its proper share of ~~whether a Default has occurred and is continuing,~~ each payment so received; (b) ~~neither~~ to give notice on behalf of the Administrative Agents shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage each of the Lenders ~~as shall be necessary under~~ to the ~~circumstances as provided~~ Borrowers of any Event of Default of which such Administrative Agent has actual knowledge acquired in ~~Section 9.02),~~ connection with its agency hereunder; and (c) ~~except~~ to distribute to each Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as ~~expressly set forth in the Loan Documents, neither of~~ received by such Administrative Agent. Neither the Administrative Agents ~~shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or~~ nor any of ~~its Subsidiaries that is communicated to~~ their respective directors, officers, employees or ~~obtained by such bank serving as the Administrative Agent of Canadian Administrative Agent or any of its Affiliates in any capacity. Neither of the Administrative Agents~~ agents shall be liable as such for any action taken or ~~not taken~~ omitted by ~~it with the consent~~ any of them except for its or ~~at the request of the Required Lenders (~~his or ~~such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its~~ her own gross negligence or ~~willful~~ wilful misconduct~~. Neither of the Administrative Agents shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Person by the Borrower Representative~~ , or ~~a Lender, and such Person shall not~~ be responsible for ~~or have any duty to ascertain or inquire into (i)~~ any statement, warranty or representation ~~made in~~ herein or ~~in connection with any Loan Document, (ii)~~ the contents of any ~~certificate, report or other~~ document delivered ~~hereunder or~~ in connection ~~with~~ herewith, or be required to ascertain or to make any ~~Loan Document, (iii)~~ inquiry concerning the performance or observance by any Borrower of any of the ~~covenants~~terms, conditions, covenants or agreements ~~or other terms or conditions set forth~~ contained in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Applicable Administrative Agentthis Agreement. ~~Each of the~~ The Administrative Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Administrative Agents may deem and treat the Lender which makes any Loan or issues or participates in any Letter of Credit as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Administrative Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the 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. The Administrative Agents shall, in the absence of knowledge to the contrary, be entitled to rely ~~upon, and shall not incur~~ on any ~~liability for relying upon, any notice, request, certificate, consent, statement, instrument,~~ instrument or document ~~or other writing~~ believed by it in good faith to be genuine and correct and to have been signed or sent by the proper ~~Person~~Person or Persons. ~~Each of~~ Neither the Administrative Agents ~~also may rely upon~~ nor any ~~statement made~~ of their respective directors, officers, employees or agents shall have any responsibility 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. Each~~ Borrower on account of the failure of or delay in performance or breach by any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. The Administrative Agents may ~~consult with~~ execute any and all duties hereunder by or through their respective branches, Affiliates, agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for the Borrowers), independent accountants and other experts~~ selected by ~~it,~~ them with due care with respect to all matters arising hereunder and shall not be liable for any action taken or ~~not taken~~ suffered in good faith by it them in accordance with the advice of ~~any~~ such counsel. Without limiting the foregoing, ~~accountants~~ any Administrative Agent may, by notice to the Company and the applicable Borrower, designate any of its branches or ~~experts~~Affiliates as the Person to receive any or all notices (including Borrowing Requests and Interest Election Requests) to be delivered to such Administrative Agent pursuant to this Agreement. ~~Each of~~ The Lenders hereby acknowledge that the Administrative Agents ~~may perform~~ shall be under no duty to take any ~~and all of its duties and exercise its rights and powers~~ discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed by such Person. Each of~~ them pursuant to the ~~Administrative Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory~~ provisions of this Agreement unless they shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each of the Administrative Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent or Canadian Administrative AgentRequired Lenders. Subject to the appointment and acceptance of a successor ~~Applicable~~ Administrative Agent as provided ~~in this paragraph~~below, ~~each of the~~ any Administrative ~~Agents~~ Agent may resign at any time by notifying the Lenders, the ~~Issuing Banks~~ other Administrative Agents and the ~~Borrower Representative~~Company. Upon any such ~~resignation~~resignation of an Administrative Agent, the Required Lenders shall have the ~~right, with the consent of the Borrowers (unless an Event of Default shall have occurred and be continuing),~~ right to appoint a ~~successor~~successor Administrative Agent acceptable to the Company. If no successor shall have been so appointed by the Required Lenders and ~~consented to by the Borrower (unless an Event of Default shall have occurred and be continuing) and~~ shall have accepted such appointment within 30 days after the retiring ~~agent~~ Administrative Agent gives notice of its resignation, then the retiring ~~agent~~ Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ which shall be a ~~commercial~~ bank having a combined capital and surplus of at least $500,000,000 (or an any Affiliate of ~~any~~ such ~~commercial~~ bank), (i) with, in the case of the U.S. Commitments, an office in New York, New York, (ii) with, in the case of the Japanese Commitments, an office in Tokyo, Japan, or (iii) with, in the case of the Multicurrency Commitments, an office in London. Upon the acceptance of ~~its~~ any appointment as an Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ hereunder by a ~~successor~~successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,,~~ and the retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrowers to a successor Administrative Agent or Canadian~~ After any Administrative Agent, as applicable, shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an Administrative Agent or Canadian Administrative Agent, as applicable, resigns ’s resignation hereunder, the provisions of this ~~Article, Section 2.17(d)~~ Article XII and Section ~~9.03~~ 13.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Person, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as ~~an Applicable~~ Administrative Agent. With respect to the Loans made by, or Letters of Credit issued by or participated in by, them hereunder, each 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 an Administrative Agent, and such Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Administrative Agent. Each Lender agrees (i) to reimburse the Administrative Agents, on demand, in the amount of its Applicable Percentage of any expenses incurred for the benefit of the Lenders by the Administrative Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (ii) to indemnify and hold harmless the Administrative Agents and any of their respective directors, officers, employees or agents, on demand, in the amount of its Applicable Percentage, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against either of them in its capacity as an Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by either of them under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Administrative Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or wilful misconduct of such Administrative Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. 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 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 each Applicable Administrative Agent or such other Person as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. The Syndication Agent, each Co-Documentation Agent and each Joint Lead Arranger and Joint Bookrunner shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.

Appears in 1 contract

Samples: Credit Agreement (Zimmer Holdings Inc)

The Administrative Agents. (a) Each of the Lenders and ~~each of~~ the Issuing ~~Banks~~ Bank hereby irrevocably appoints the US Administrative Agent ~~and, as applicable,~~ and the Canadian Administrative Agent, each individually, as its agent and authorizes ~~each of~~ the US Administrative ~~Agents~~ Agent and the Canadian Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to ~~the Applicable~~ such Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto~~. Each~~ . (b) Any bank serving as the US Administrative Agent or the Canadian 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 US Administrative Agent or the Canadian Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to to, invest in 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 US Administrative Agent or the Canadian Administrative Agent hereunder. . (c) Neither of the US Administrative ~~Agents~~ Agent nor the Canadian Administrative Agent shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) neither of the US Administrative ~~Agents~~ Agent nor the Canadian Administrative Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) neither of the US Administrative ~~Agents~~ Agent nor the Canadian Administrative Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that ~~the Applicable~~ such Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth in the Loan Documents, neither of the US Administrative ~~Agents~~ Agent nor the Canadian Administrative Agent shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by ~~such~~ the bank serving as the US Administrative Agent of or the Canadian Administrative Agent or any of its Affiliates in any capacity. Neither of the US Administrative ~~Agents~~ Agent, nor the Canadian Administrative Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. Neither of the US Administrative ~~Agents~~ Agent nor the Canadian Administrative Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such ~~Person~~ Administrative Agent by the Borrower Representative or a Lender, and ~~such Person~~ neither the US Administrative Agent nor the Canadian Administrative Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document, (v) the legality, validity, enforceability, ~~effectiveness~~ effectiveness, adequacy or genuineness of any Loan Document or any other agreement, instrument or document, (vvi) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vivii) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to ~~such Applicable~~ the US Administrative Agent or the Canadian Administrative Agent~~. Each of~~ . (d) The US Administrative Agent and the Canadian Administrative ~~Agents~~ Agent shall each be entitled to rely upon, and shall not incur any liability for relying upon, (i) any representation, notice, request, certificate, consent, statement, instrument, document or other writing or communication believed by it to be ~~genuine~~ genuine, correct and to have been authorized, signed or sent by the proper Person~~. Each of the Administrative Agents also may rely upon~~ , (ii) any statement made to it orally or by telephone and believed by it to be made or authorized by the proper ~~Person~~Person or (iii) any statement made by a director, authorized signatory or employee of any Person regarding any matters which may reasonably be assumed to be within his or her knowledge or within his or her power to verify. The US Administrative Agent and ~~shall not incur any liability for relying thereon. Each of~~ the Canadian Administrative ~~Agents~~ 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~~. Each of~~ . (e) The US Administrative Agent and the Canadian Administrative ~~Agents~~ Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by ~~such Person~~the US Administrative Agent or the Canadian Administrative Agent, as the case may be. ~~Each of~~ The US Administrative Agent and the Canadian Administrative ~~Agents~~ Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~each of~~ the US Administrative ~~Agents~~ Agent and the Canadian 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 US Administrative Agent or and the Canadian Administrative Agent. , as the case may be. (f) Subject to the appointment and acceptance of a successor ~~Applicable~~ US Administrative ~~Agent~~ Agent, or Canadian Administrative Agent, as the case may be, as provided in this paragraph, ~~each of~~ the US Administrative ~~Agents~~ Agent and the Canadian Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Banks~~ Bank and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrowers (unless an Event of Default shall have occurred and be continuing)~~Borrowers, to appoint a ~~successor~~successor (which shall, in the case of the Canadian Administrative Agent only, be an Affiliate of the US Administrative Agent acting through a branch or an office in Canada). If no successor shall have been so appointed by the Required Lenders and ~~consented to by the Borrower (unless an Event of Default shall have occurred and be continuing) and~~ shall have accepted such appointment within 30 days after the retiring ~~agent~~ Administrative Agent gives notice of its resignation, then the retiring ~~agent~~ Administrative Agent may, on behalf of the Lenders and the Issuing ~~Banks~~Bank, appoint a its successor ~~Administrative Agent or Canadian Administrative Agent, as applicable~~in such capacity, which shall be a commercial bank or an Affiliate of any such commercial ~~bank~~bank or a Lender (and in the case of the Canadian Administrative Agent only, be an Affiliate of the US Administrative Agent acting through an office in Canada). Upon the acceptance of its appointment as an US Administrative Agent or Canadian Administrative ~~Agent, as applicable,~~ Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, ~~privileges~~ privileges, obligations and duties of the retiring US Administrative Agent or Canadian Administrative Agent, ~~as applicable,,~~ and the retiring US Administrative Agent or Canadian Administrative ~~Agent, as applicable,~~ Agent shall be discharged from its duties and any further obligations hereunder. The retiring US Administrative Agent or Canadian Administrative Agent shall, at its own cost, make available to the successor US Administrative Agent or Canadian Administrative Agent any documents and records and provide any assistance which the successor US Administrative Agent or Canadian Administrative Agent may reasonably request for the purposes of performing its functions as US Administrative Agent or Canadian Administrative Agent under the Loan Documents. The fees payable by the Borrowers to a successor US Administrative Agent or Canadian Administrative ~~Agent, as applicable,~~ Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an the US Administrative ~~Agent~~ Agent’s or Canadian Administrative Agent~~, as applicable, resigns~~ ’s resignation hereunder, the provisions of this ~~Article, Section 2.17(d)~~ Article and Section 9.03 shall continue in effect for the benefit of such retiring ~~Person~~Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as ~~an Applicable~~ US Administrative Agent or Canadian Administrative Agent. . (g) Each Lender acknowledges that it has, independently and without reliance upon ~~either of~~ the US Administrative ~~Agents~~ Agent, the Canadian Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon ~~either of~~ the US Administrative ~~Agents~~ Agent, the Canadian Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. . (h) Each Lender hereby agrees that (a) it has ~~requested a copy of~~ been provided access to each Report prepared by or on behalf of the US Administrative Agent; (b) neither the US Administrative Agent nor the Canadian Administrative Agent (i) makes no any representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall ~~not~~ be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the 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 neither the US Administrative Agent nor the Canadian Administrative Agent undertakes no any obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, and it will not share the Report with ~~any Loan Party or~~ any other Person except as otherwise permitted pursuant to Section 9.12 of 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 US Administrative Agent, the Canadian 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 ~~each Applicable Administrative Agent or such other Person~~ as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying ~~Lender~~Lender (except as permitted pursuant to Section 9.12 of this Agreement). (i) For the purposes of holding any security granted by any Borrower or any other Loan Party pursuant to the laws of the Province of Quebec to secure payment of any bond, note or other title of indebtedness issued by any Borrower or any Loan Party, each Administrative Agent, each Lender and each Issuing Bank hereby irrevocably appoints and authorizes the Canadian Administrative Agent and, to the extent necessary, ratifies the appointment and authorization of the Canadian Administrative Agent, to act as the person holding the power of attorney (i.e. “fondé de pouvoir”) (in such capacity, the “Attorney”) of the Administrative Agents, the Lenders and the Issuing Bank as contemplated under Article 2692 of the Civil Code of Québec, and to enter into, to take and to hold on its behalf, and for its benefit, and for the benefit of each Administrative Agent, each Lender and the Issuing Bank, any hypothec, and to exercise such powers and duties that are conferred upon the Attorney under any hypothec. Moreover, without prejudice to such appointment and authorization to act as the person holding the power of attorney as aforesaid, each Administrative Agent, each Lender and the Issuing Bank hereby irrevocably appoints and authorizes the Canadian Administrative Agent (in such capacity, the “Custodian”) to act as agent and custodian for and on behalf of the Administrative Agents, the Lenders and the Issuing Bank to hold and be the sole registered holder of any bond, note or title of indebtedness which may be issued under any hypothec, the whole notwithstanding Section 32 of An Act respecting the special powers of legal persons (Quebec) or any other applicable law, and to execute all related documents. Each of the Attorney and the Custodian shall: (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to the Attorney and the Custodian (as applicable) pursuant to any hypothec, bond, note or title of indebtedness, pledge, applicable laws or otherwise, (b) benefit from and be subject to all provisions hereof with respect to the Canadian Administrative Agent mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the Administrative Agents, the Lenders and the Issuing Bank, and (c) be entitled to delegate from time to time any of its powers or duties under any hypothec, bond, note or title of indebtedness or pledge on such terms and conditions as it may determine from time to time. Any person who becomes an Administrative Agent, a Lender or the Issuing Bank shall, by its execution of an Assignment and Assumption, be deemed to have consented to and confirmed: (i) the Attorney as the person holding the power of attorney as aforesaid and to have ratified, as of the date it becomes an Administrative Agent, a Lender or the Issuing Bank, as applicable all actions taken by the Attorney in such capacity, and (ii) the Custodian as the agent and custodian as aforesaid and to have ratified, as of the date it becomes an Administrative Agent, a Lender or the Issuing Bank, all actions taken by the Custodian in such capacity. The substitution of the Canadian Administrative Agent pursuant to the provisions of this Article VIII shall also constitute the substitution of the Attorney and the Custodian. (j) None of the Syndication Agent, ~~each Co-Documentation Agent and each~~ the Joint Bookrunners or the Joint Lead ~~Arranger and Joint Bookrunner~~ Arrangers shall ~~not~~ have any right, power, obligation, liability, responsibility or duty under this Agreement or any other ~~than those applicable to all Lenders~~ Loan Document, except in its capacity, as ~~such~~applicable, as an Administrative Agent, a Lender, a Swingline Lender or the Issuing Bank under this Agreement.

Appears in 1 contract

Samples: Credit Agreement (Bowne & Co Inc)

The Administrative Agents. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent and, as applicable, the ~~Canadian~~ Multicurrency Administrative Agent, as its agent and authorizes each of the Administrative Agents to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Applicable Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Each bank serving as the Administrative Agent or ~~Canadian~~ Multicurrency 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 or ~~Canadian~~ Multicurrency Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent hereunder. Neither of the Administrative Agents shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) neither of the Administrative Agents shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) neither of the Administrative Agents shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth in the Loan Documents, neither of the Administrative Agents shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by such bank serving as the Administrative Agent ~~of Canadian~~ or Multicurrency Administrative Agent or any of its Affiliates in any capacity. Neither of the Administrative Agents shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. Neither of the Administrative Agents shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Person by the Borrower Representative or a Lender, and such Person shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Applicable Administrative Agent. Each of the Administrative Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Administrative Agents 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. Each of the Administrative Agents may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Administrative Agents may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Person. Each of the Administrative Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each of the Administrative Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent. Subject to the appointment and acceptance of a successor Applicable Administrative Agent as provided in this paragraph, each of the Administrative Agents may resign at any time by notifying the Lenders, the Issuing Banks and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrowers (unless an Event of Default shall have occurred and be continuing), to appoint a successor. If no successor shall have been so appointed by the Required ~~Lenders~~ Xxxxxxx and consented to by the Borrower (unless an Event of Default shall have occurred and be continuing) and shall have accepted such appointment within 30 days after the retiring agent gives notice of its resignation, then the retiring agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent, as applicable, which shall be a commercial bank or an Affiliate of any such commercial bank. Upon the acceptance of its appointment as an Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent, as applicable, hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent, as applicable,, and the retiring Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent, as applicable, shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent, as applicable, shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an the Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent, as applicable, resigns hereunder, the provisions of this Article, Section 2.17(d) and Section 9.03 shall continue in effect for the benefit of such retiring Person, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an Applicable Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon either of the Administrative Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon either of the Administrative Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. 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 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, and 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~~ Agents 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~~ attorneys’ fees) incurred by each Applicable Administrative Agent or such other Person as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. ~~The~~ Each Co-Syndication Agent, each Co-Documentation Agent and each Joint Lead Arranger and Joint Bookrunner shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. To the extent required by any applicable law, each Agent may withhold from any payment to any Lender under any Loan Document an amount equal to any applicable withholding Tax. If the IRS or any other Governmental Authority asserts a claim that such Agent did not properly withhold Tax from amounts paid to or for the account of any Lender (because the appropriate certification form was not delivered, was not properly executed, or fails to establish an exemption from, or reduction of, withholding Tax with respect to a particular type of payment, or because such Lender failed to notify such Agent or any other Person of a change in circumstances which rendered the exemption from, or reduction of, withholding Tax ineffective, or for any other reason), or such Agent reasonably determines that it was required to withhold Taxes from a prior payment but failed to do so, such Lender shall promptly indemnify such Agent fully for all amounts paid, directly or indirectly, by such Agent as Tax or otherwise, including penalties and interest, and together with all expenses incurred by such Agent, including legal expenses, allocated internal costs and out-of-pocket expenses (but, in the case of any Indemnified Taxes, only to the extent that the Loan Parties have not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so). Each Agent may offset against any payment to any Lender under a Loan Document any applicable withholding Tax that was required to be withheld from any prior payment to such Lender but which was not so withheld, as well as any other amounts for which such Agent is entitled to indemnification from such Lender under this Article VIII.

Appears in 1 contract

Samples: Credit Agreement (Levi Strauss & Co)

The Administrative Agents. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent and, as applicable, the ~~Canadian~~ Multicurrency Administrative Agent, as its agent and authorizes each of the Administrative Agents to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Applicable Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Each bank serving as the Administrative Agent or ~~Canadian~~ Multicurrency 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 or ~~Canadian~~ Multicurrency Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent hereunder. Neither of the Administrative Agents shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) neither of the Administrative Agents shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) neither of the Administrative Agents shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth in the Loan Documents, neither of the Administrative Agents shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by such bank serving as the Administrative Agent ~~of Canadian~~ or Multicurrency Administrative Agent or any of its Affiliates in any capacity. Neither of the Administrative Agents shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. Neither of the Administrative Agents shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Person by the Borrower Representative or a Lender, and such Person shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Applicable Administrative Agent. Each of the Administrative Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Administrative Agents 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. Each of the Administrative Agents may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Administrative Agents may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Person. Each of the Administrative Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each of the Administrative Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent. Subject to the appointment and acceptance of a successor Applicable Administrative Agent as provided in this paragraph, each of the Administrative Agents may resign at any time by notifying the Lenders, the Issuing Banks and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrowers (unless an Event of Default shall have occurred and be continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and consented to by the Borrower (unless an Event of Default shall have occurred and be continuing) and shall have accepted such appointment within 30 days after the retiring agent gives notice of its resignation, then the retiring agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent, as applicable, which shall be a commercial bank or an Affiliate of any such commercial bank. Upon the acceptance of its appointment as an Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent, as applicable, hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent, as applicable,, and the retiring Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent, as applicable, shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent, as applicable, shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an the Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent, as applicable, resigns hereunder, the provisions of this Article, Section 2.17(d) and Section 9.03 shall continue in effect for the benefit of such retiring Person, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an Applicable Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon either of the Administrative Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon either of the Administrative Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Each Lender and Issuing Bank hereby agrees that (x) if the Administrative Agent notifies such Lender or Issuing Bank that the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Issuing Bank from the Administrative Agent or any of its Affiliates (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) were erroneously transmitted to such Lender or Issuing Bank (whether or not known to such Lender or Issuing Bank), and demands the return of such Payment (or a portion thereof), such Lender or Issuing Bank shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender or Issuing Bank to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law, such Lender or Issuing Bank shall not assert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice of the Administrative Agent to any Lender under this paragraph of Section 8.01 shall be conclusive, absent manifest error. The Borrowers and each other Loan Party hereby agree that (x) in the event an erroneous Payment (or portion thereof) are not recovered from any Lender or Issuing Bank that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender or Issuing Bank with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrowers or any other Loan Party. 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 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, and 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~~ Agents 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~~ attorneys’ fees) incurred by each Applicable Administrative Agent or such other Person as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. ~~The~~ Each Co-Syndication Agent, each Co-Documentation Agent and each Joint Lead Arranger and Joint Bookrunner shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. To the extent required by any applicable law, each Agent may withhold from any payment to any Lender under any Loan Document an amount equal to any applicable withholding Tax. If the IRS or any other Governmental Authority asserts a claim that such Agent did not properly withhold Tax from amounts paid to or for the account of any Lender (because the appropriate certification form was not delivered, was not properly executed, or fails to establish an exemption from, or reduction of, withholding Tax with respect to a particular type of payment, or because such Lender failed to notify such Agent or any other Person of a change in circumstances which rendered the exemption from, or reduction of, withholding Tax ineffective, or for any other reason), or such Agent reasonably determines that it was required to withhold Taxes from a prior payment but failed to do so, such Lender shall promptly indemnify such Agent fully for all amounts paid, directly or indirectly, by such Agent as Tax or otherwise, including penalties and interest, and together with all expenses incurred by such Agent, including legal expenses, allocated internal costs and out-of-pocket expenses (but, in the case of any Indemnified Taxes, only to the extent that the Loan Parties have not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so). Each Agent may offset against any payment to any Lender under a Loan Document any applicable withholding Tax that was required to be withheld from any prior payment to such Lender but which was not so withheld, as well as any other amounts for which such Agent is entitled to indemnification from such Lender under this Article VIII.

Appears in 1 contract

Samples: Credit Agreement (Levi Strauss & Co)

The Administrative Agents. Each of the Lenders and ~~each of~~ the Issuing ~~Banks~~ Bank hereby irrevocably appoints the US Administrative Agent ~~and, as applicable, the Canadian Administrative Agent,~~ as its agent and authorizes ~~each of~~ the US Administrative ~~Agents~~ Agent to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the ~~Applicable~~ US Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Each of the Lenders hereby irrevocably appoints the Canadian Administrative Agent as its agent and authorizes the Canadian Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Canadian Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the US Administrative Agent hereunder shall have the same rights and powers in its capacity as a US Lender as any other US Lender and may exercise the same as though it were not the US Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the US Administrative Agent hereunder. The bank serving as the Canadian Administrative Agent hereunder shall have the same rights and powers in its capacity as a Canadian Lender as any other Canadian Lender and may exercise the same as though it were not the ~~Administrative Agent or~~ Canadian Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the ~~Administrative Agent or~~ Canadian Administrative Agent hereunder. Neither of the US Administrative ~~Agents~~ Agent nor the Canadian Administrative Agent shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) neither ~~of the~~ Administrative ~~Agents~~ Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) neither ~~of the~~ Administrative ~~Agents~~ Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that ~~the Applicable~~ such US Administrative Agent is required to exercise in writing as directed by the Required Lenders, the Required US Lenders or the Required Canadian Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), as applicable, and (c) except as expressly set forth in the Loan Documents, neither ~~of the~~ Administrative ~~Agents~~ Agent shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by ~~such~~ the bank serving as ~~the~~ US Administrative ~~Agent of~~ Agent, Canadian Administrative Agent or any of its Affiliates in any capacity. Neither ~~of the~~ Administrative ~~Agents~~ Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders, the Required US Lenders or the Required Canadian Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) ), as applicable, or in the absence of its own gross negligence or willful misconduct. Neither ~~of the~~ Administrative ~~Agents~~ Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such ~~Person~~ Administrative Agent by ~~the~~ either Borrower ~~Representative~~ or a Lender, and ~~such Person~~ neither Administrative Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such ~~Applicable~~ Administrative Agent. Each ~~of the~~ Administrative ~~Agents~~ Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each ~~of the~~ Administrative ~~Agents~~ 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. Each ~~of the~~ Administrative ~~Agents~~ Agent may consult with legal counsel (who may be counsel for ~~the Borrowers~~either 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. Each ~~of the~~ Administrative ~~Agents~~ Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such ~~Person~~Administrative Agent. Each ~~of the~~ Administrative ~~Agents~~ Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~each of the~~ either Administrative ~~Agents~~ 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 or Canadian~~ such Administrative Agent. Subject to the appointment and acceptance of a successor ~~Applicable~~ US Administrative Agent or Canadian Administrative Agent, as the case may be, as provided in this paragraph, each ~~of the~~ Administrative ~~Agents~~ Agent may resign at any time by notifying the Lenders, the Issuing ~~Banks~~ Bank and the ~~Borrower Representative~~Borrowers. Upon any such resignation, the Required US Lenders or the Required Canadian Lenders, as applicable, shall have the right, in consultation with the ~~consent of the Borrowers (unless an Event of Default shall have occurred and be continuing)~~Borrowers, to appoint a successor. If no successor shall have been so appointed by the Required US Lenders ~~and consented to by the Borrower (unless an Event of Default shall have occurred and be continuing)~~ or Required Canadian Lenders, as applicable, and shall have accepted such appointment within 30 days after the retiring ~~agent~~ US Administrative Agent or Canadian Administrative Agent, as the case may be, gives notice of its resignation, then ~~the~~ such retiring ~~agent~~ Administrative Agent may, on behalf of the Lenders and the Issuing ~~Banks~~Bank, appoint a successor US Administrative Agent or Canadian Administrative Agent, as ~~applicable~~the case may be, which shall be a commercial bank or an Affiliate of any such commercial bank. Upon the acceptance of its appointment as an US Administrative Agent or Canadian Administrative Agent, as ~~applicable~~the case may be, hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of ~~the~~ such retiring Administrative Agent, and such retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,, and the retiring Administrative Agent or Canadian Administrative Agent, as applicable,~~ shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor US Administrative Agent or Canadian Administrative Agent, as ~~applicable~~the case may be, shall be the same as those payable to its predecessor unless otherwise agreed between ~~the Borrowers~~ either Borrower and such successor. After an the US Administrative ~~Agent~~ Agent’s or the Canadian Administrative Agent’s, as ~~applicable~~the case may be, ~~resigns~~ resignation hereunder, the provisions of this ~~Article, Section 2.17(d)~~ Article and Section 9.03 shall continue in effect for the benefit of such retiring ~~Person~~Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as ~~an Applicable~~ US Administrative Agent or Canadian Administrative Agent, as the case may be. Each Lender acknowledges that it has, independently and without reliance upon either ~~of the~~ Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon either ~~of the~~ Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Each Lender hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of ~~the~~ each Administrative Agent; (b) ~~the~~ each Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the 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~~ each 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~~Agreement (provided, that each Administrative Agent shall be permitted to share any such Report with the Borrowers in its reasonable discretion); 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~~ each 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 ~~each Applicable Administrative Agent or such other Person~~ as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. The Syndication Agent, each Co-Documentation Agent and each Joint Lead Arranger and Joint Bookrunner shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.

Appears in 1 contract

Samples: Credit Agreement (Cellu Tissue Holdings, Inc.)

The Administrative Agents. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent and, as applicable, the Canadian Administrative Agent and their respective successors to serve in such capacities under the Loan Documents (and in the case of the Administrative Agent, to serve as ~~its agent~~ collateral agent), and authorizes each ~~of the Administrative Agents~~ such Agent to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to ~~the Applicable Administrative~~ such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction other than the United States of America, each of the 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. Each bank serving as the Administrative Agent or Canadian Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent or Canadian Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~the~~ any Loan ~~Parties~~ Party or any Subsidiary ~~of a Loan Party~~ or other Affiliate thereof as if it were not the Administrative Agent or Canadian Administrative Agent ~~hereunder~~hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. Neither of the Administrative Agents shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) neither of the Administrative Agents shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is ~~continuing~~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 Agents 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) neither of the Administrative Agents shall have any duty to take any discretionary action or to exercise any discretionary ~~powers~~power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Applicable Administrative Agent is required to exercise as directed in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Applicable Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in ~~Section 9.02~~the Loan Documents); provided that the Applicable Administrative Agent shall not be required to take any action that, in its opinion, could expose such Administrative Agent to liability or be contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, neither of the Administrative Agents shall have any duty to ~~disclose,~~ disclose and shall ~~not~~ be liable for the failure to disclose, any information relating to any Loan Party or any ~~of its Subsidiaries~~ Subsidiary or other Affiliate thereof that is communicated to or obtained by such bank serving as ~~the~~ Administrative Agent of or Canadian Administrative Agent or any of ~~its~~ their respective Affiliates in any capacity. Neither of the Administrative Agents shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Applicable Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in ~~Section 9.02~~the Loan Documents) or in the absence of its own bad faith, gross negligence or willful ~~misconduct~~misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). Neither of the Administrative Agents shall be deemed to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the such Person by the Borrower Representative or a Lender, and such Person shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan ~~Document~~Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to ~~such~~ the Applicable Administrative Agent. Each of the Administrative Agents shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ signed, sent or ~~sent~~ otherwise authenticated by the proper ~~Person~~Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof). Each of the Administrative Agents also ~~may rely~~ shall be entitled to rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~Person~~Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof), and 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 Applicable Administrative Agent may presume that such condition is satisfactory to such Lender or Issuing Bank unless such Applicable Administrative Agent shall ~~not incur any liability for relying thereon~~have received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. Each of the Administrative Agents may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Administrative Agents may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by such Person. Each of the Administrative Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs~~ this Article shall apply to any such sub-agent and to the Related Parties of each of the Administrative Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as each of the Administrative Agents. Neither of the Administrative Agents shall 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 nonappealable judgment that such Agent acted with bad faith, gross negligence or ~~Canadian Administrative Agent~~willful misconduct in the selection of such sub-agents. Subject to the appointment and acceptance of a successor ~~Applicable Administrative~~ Agent as provided in this paragraph, each of the Administrative Agents may resign at any time by notifying the Lenders, the Issuing Banks and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrowers (unless an Event of Default shall have occurred and be continuing)~~Borrowers, to appoint a ~~successor~~successor that is an Eligible Successor Agent. If no successor shall have been so appointed by the Required Lenders and ~~consented to by the Borrower (unless an Event of Default shall have occurred and be continuing) and~~ shall have accepted such appointment within 30 days after the retiring ~~agent~~ Agent gives notice of its resignation, then the retiring ~~agent~~ Agent may, in consultation with the Borrower Representative, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent or Canadian Administrative Agent, as applicable, which ~~shall be a commercial bank or~~ is an ~~Affiliate of any such commercial bank~~Eligible Successor Agent. Upon the acceptance of its appointment as an Administrative Agent or Canadian Administrative Agent, as applicable, hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent or Canadian Administrative Agent, as applicable,, and the retiring Administrative Agent or Canadian Administrative Agent, as applicable, shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent or Canadian Administrative Agent, as applicable, shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an Administrative Agent or Canadian Administrative Agent, as applicable, resigns hereunder, the provisions of this Article, Section 2.17(d) and Section 9.03 shall continue in effect for the benefit of such retiring Person, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as ~~an Applicable Administrative~~ Agent. Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon either of the Administrative ~~Agents~~ Agents, any Arranger, any Lender or any ~~other Lender~~ Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon either of the Administrative ~~Agents~~ Agents, any Arranger, any Lender or any ~~other Lender~~ 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 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 ~~each Applicable Administrative Agent or such other Person~~ as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. ~~The Syndication Agent~~To the extent required by any applicable laws (as determined in good faith by the Administrative Agents), the Administrative Agents may withhold from any payment to any Lender under any Loan Document an amount equivalent to any applicable withholding Tax. Without limiting or expanding the provisions of Section 2.17, each Lender shall indemnify and hold harmless the Administrative Agents against, and shall make payable in respect thereof within 10 days after demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agents) incurred by or asserted against the Administrative Agents by the IRS or any other Governmental Authority as a result of the failure of the Administrative Agents to properly withhold Tax from amounts paid to or for the account of such Lender for any reason (including because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agents of a change in circumstance that rendered the exemption from, or reduction of withholding Tax ineffective). A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agents shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due the Administrative Agents under this paragraph. The agreements in this paragraph shall survive the resignation and/or replacement of the Administrative Agents, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations. The provisions of this Article are solely for the benefit of each of the Agents, 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 rights 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 agreed to 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 as an Arranger or a Co-Syndication Agent or a Co-Documentation ~~Agent and each Joint Lead Arranger and Joint Bookrunner~~ AgentsAgent shall ~~not~~ have any ~~right, power, obligation, liability, responsibility~~ duties or ~~duty~~ obligations under this Agreement or any other ~~than those applicable to~~ Loan Document (except in its capacity, as applicable, as a Lender or an Issuing Bank), but all ~~Lenders as such~~such Persons shall have the benefit of the indemnities provided for hereunder.

Appears in 1 contract

Samples: Credit Agreement (Tailored Brands Inc)

The Administrative Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB, is hereby appointed to act as the General Administrative Agent on behalf of the U.S. Lenders, JPMorgan Chase Bank, N.A., Tokyo Branch is hereby appointed to act as Japanese Administrative Agent on behalf of the Japanese Lenders, X.X. Xxxxxx Europe Limited is hereby appointed to act as European Administrative Agent on behalf of the Multicurrency Lenders and JPMCB is hereby appointed to act as Advance Agent on behalf of the Lenders. Each of the Lenders ~~and each of the Issuing Banks~~ hereby irrevocably ~~appoints the~~ authorizes each Administrative Agent ~~and~~(which term, ~~as applicable,~~ for purposes of this Article XII shall be deemed to include the ~~Canadian Administrative~~ Advance Agent~~, as its agent and authorizes each of the Administrative Agents~~ ) to take such actions on ~~its behalf, including execution~~ behalf of ~~the other Loan Documents,~~ such Lender or holder and to exercise such powers as are specifically delegated to the ~~Applicable~~ Administrative Agents or an Administrative Agent individually, as the case may be, by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. Each ~~bank serving as the~~ Administrative Agent ~~or Canadian~~ 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, payments in respect of the Letters of Credit 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 Borrowers of any Event of Default of which such Administrative Agent ~~hereunder shall have the same rights~~ has actual knowledge acquired in connection with its agency hereunder; and ~~powers in its capacity~~ (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as ~~a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent or Canadian~~ received by such Administrative Agent. Notwithstanding anything herein to the contrary, and such bank and its Affiliates may accept deposits from, lend money to 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 or Canadian Administrative Agent hereunder. Neither none of the ~~Administrative Agents~~ Arrangers, syndication agents, documentation agents or bookrunners listed on the cover page hereof shall have any duties or obligations ~~except those expressly set forth in~~ under this Agreement or any of the other Loan Documents~~. Without limiting~~ , except in its capacity, as applicable, as the ~~generality~~ General Administrative Agent, the Japanese Administrative Agent, the European Administrative Agent, the Left Lead Arranger, the Issuing Lender or a Lender under this Agreement, but all such Persons shall have the benefit of the ~~foregoing, (a) neither of~~ indemnities provided for hereunder. Neither the Administrative Agents shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) neither of the Administrative Agents shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth in the Loan Documents, neither of the Administrative Agents shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or nor any of ~~its Subsidiaries that is communicated to~~ their respective directors, officers, employees or ~~obtained by such bank serving as the Administrative Agent of Canadian Administrative Agent or any of its Affiliates in any capacity. Neither of the Administrative Agents~~ agents shall be liable as such for any action taken or ~~not taken~~ omitted by ~~it with the consent~~ any of them except for its or ~~at the request of the Required Lenders (~~his or ~~such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its~~ her own gross negligence or ~~willful~~ wilful misconduct~~. Neither of the Administrative Agents shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Person by the Borrower Representative~~ , or ~~a Lender, and such Person shall not~~ be responsible for ~~or have any duty to ascertain or inquire into (i)~~ any statement, warranty or representation ~~made in~~ herein or ~~in connection with any Loan Document, (ii)~~ the contents of any ~~certificate, report or other~~ document delivered ~~hereunder or~~ in connection ~~with~~ herewith, or be required to ascertain or to make any ~~Loan Document, (iii)~~ inquiry concerning the performance or observance by any Borrower of any of the ~~covenants~~terms, conditions, covenants or agreements ~~or other terms or conditions set forth~~ contained in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Applicable Administrative Agentthis Agreement. ~~Each of the~~ The Administrative Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Administrative Agents may deem and treat the Lender which makes any Loan or issues or participates in any Letter of Credit as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Administrative Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the 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. The Administrative Agents shall, in the absence of knowledge to the contrary, be entitled to rely ~~upon, and shall not incur~~ on any ~~liability for relying upon, any notice, request, certificate, consent, statement, instrument,~~ instrument or document ~~or other writing~~ believed by it in good faith to be genuine and correct and to have been signed or sent by the proper ~~Person~~Person or Persons. ~~Each of~~ Neither the Administrative Agents ~~also may rely upon~~ nor any ~~statement made~~ of their respective directors, officers, employees or agents shall have any responsibility 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. Each~~ Borrower on account of the failure of or delay in performance or breach by any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. The Administrative Agents may ~~consult with~~ execute any and all duties hereunder by or through their respective branches, Affiliates, agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for the Borrowers), independent accountants and other experts~~ selected by ~~it,~~ them with due care with respect to all matters arising hereunder and shall not be liable for any action taken or ~~not taken~~ suffered in good faith by it them in accordance with the advice of ~~any~~ such counsel. Without limiting the foregoing, ~~accountants~~ any Administrative Agent may, by notice to the Company and the applicable Borrower, designate any of its branches or ~~experts~~Affiliates as the Person to receive any or all notices (including Borrowing Requests and Interest Election Requests) to be delivered to such Administrative Agent pursuant to this Agreement. ~~Each of~~ The Lenders hereby acknowledge that the Administrative Agents ~~may perform~~ shall be under no duty to take any ~~and all of its duties and exercise its rights and powers~~ discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed by such Person. Each of~~ them pursuant to the ~~Administrative Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory~~ provisions of this Agreement unless they shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each of the Administrative Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent or Canadian Administrative AgentRequired Lenders. Subject to the appointment and acceptance of a successor ~~Applicable~~ Administrative Agent as provided ~~in this paragraph~~below, ~~each of the~~ any Administrative ~~Agents~~ Agent may resign at any time by notifying the Lenders, the ~~Issuing Banks~~ other Administrative Agents and the ~~Borrower Representative~~Company. Upon any such ~~resignation~~resignation of an Administrative Agent, the Required Lenders shall have the ~~right, with the consent of the Borrowers (unless an Event of Default shall have occurred and be continuing),~~ right to appoint a ~~successor~~successor Administrative Agent acceptable to the Company. If no successor shall have been so appointed by the Required Lenders and ~~consented to by the Borrower (unless an Event of Default shall have occurred and be continuing) and~~ shall have accepted such appointment within 30 days after the retiring ~~agent~~ Administrative Agent gives notice of its resignation, then the retiring ~~agent~~ Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ which shall be a ~~commercial~~ bank having a combined capital and surplus of at least $500,000,000 (or an any Affiliate of ~~any~~ such ~~commercial~~ bank), (i) with, in the case of the U.S. Commitments, an office in New York, New York, (ii) with, in the case of the Japanese Commitments, an office in Tokyo, Japan, or (iii) with, in the case of the Multicurrency Commitments, an office in London. Upon the acceptance of ~~its~~ any appointment as an Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ hereunder by a ~~successor~~successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,,~~ and the retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrowers to a successor Administrative Agent or Canadian~~ After any Administrative Agent, as applicable, shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an Administrative Agent or Canadian Administrative Agent, as applicable, resigns ’s resignation hereunder, the provisions of this ~~Article, Section 2.17(d)~~ Article XII and Section ~~9.03~~ 13.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Person, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as ~~an Applicable~~ Administrative Agent. With respect to the Loans made by, or Letters of Credit issued by or participated in by, them hereunder, each 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 an Administrative Agent, and such Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Administrative Agent. Each Lender agrees (i) to reimburse the Administrative Agents, on demand, in the amount of its a pro rata share of any expenses incurred for the benefit of the Lenders by the Administrative Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (ii) to indemnify and hold harmless the Administrative Agents and any of their respective directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel fees, incurred by or asserted against either of them in its capacity as an Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by either of them under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Administrative Agent for any portion of such losses, claims, damages, liabilities or related expenses resulting from the gross negligence or wilful misconduct of such Administrative Agent or any of its directors, officers, employees or agents. For purposes hereof, a Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate Revolving Credit Exposure, outstanding Term Loans and unused Commitments at the time. Each Lender acknowledges that it has, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. 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 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 each Applicable Administrative Agent or such other Person as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. The Syndication Agent, each Co-Documentation Agent and each Joint Lead Arranger and Joint Bookrunner shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.

Appears in 1 contract

Samples: Credit Agreement (Zimmer Holdings Inc)

The Administrative Agents. In order to expedite the transactions contemplated by this Agreement, each of The Chase Manhattan Bank and Citibank, N.A. is hereby appointed to act as an Administrative Agent on behalf of the Lenders and Citibank is hereby appointed to act as Advance Agent on behalf of the Lenders. Each of the Lenders ~~and each of the Issuing Banks~~ hereby irrevocably ~~appoints the~~ authorizes each Administrative Agent ~~and~~(which term, ~~as applicable~~for purposes of this Article VII, shall be deemed to include the ~~Canadian Administrative~~ Advance Agent~~, as its agent and authorizes each of the Administrative Agents~~ ) to take such actions on ~~its behalf, including execution~~ behalf of ~~the other Loan Documents,~~ such Lender or holder and to exercise such powers as are specifically delegated to the ~~Applicable~~ Administrative Agents or an Administrative Agent individually, as the case may be, by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. ~~Each bank serving~~ Citibank 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 or any Borrowing Subsidiary of any Event of Default of which Citibank 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 Borrowing Subsidiary pursuant to this Agreement as received by Citibank. Notwithstanding the ~~Administrative Agent or Canadian Administrative Agent hereunder~~ foregoing, Chase shall have no duties under the ~~same rights and powers~~ Loan Documents in its capacity as ~~a Lender as any other Lender and may exercise the same as though it were not the~~ Administrative Agent. Neither Administrative Agent or Canadian Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the Administrative Agent or Canadian Administrative Agent hereunder. Neither of the Administrative Agents shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) neither of the Administrative Agents shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) neither of the Administrative Agents shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth in the Loan Documents, neither of the Administrative Agents shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or nor any of ~~its Subsidiaries that is communicated to~~ their respective directors, officers, employees or ~~obtained by such bank serving as the Administrative Agent of Canadian Administrative Agent or any of its Affiliates in any capacity. Neither of the Administrative Agents~~ agents shall be liable as such for any action taken or ~~not taken~~ omitted by ~~it with the consent~~ any of them except for its or ~~at the request of the Required Lenders (~~his or ~~such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its~~ her own gross negligence or willful misconduct~~. Neither of the Administrative Agents shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Person by the Borrower Representative~~ , or ~~a Lender, and such Person shall not~~ be responsible for ~~or have any duty to ascertain or inquire into (i)~~ any statement, warranty or representation ~~made in~~ herein or ~~in connection with any Loan Document, (ii)~~ the contents of any ~~certificate, report or other~~ document delivered ~~hereunder or~~ in connection ~~with~~ herewith, or be required to ascertain or to make any ~~Loan Document, (iii)~~ inquiry concerning the performance or observance by the Company or any Borrowing Subsidiary of any of the ~~covenants~~terms, conditions, covenants or agreements ~~or other terms or conditions set forth~~ contained in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Applicable Administrative Agentthis Agreement. ~~Each of the~~ The Administrative Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Administrative Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Administrative Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the 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. The Administrative Agents shall, in the absence of knowledge to the contrary, be entitled to rely ~~upon, and shall not incur~~ on any ~~liability for relying upon, any notice, request, certificate, consent, statement, instrument,~~ instrument or document ~~or other writing~~ believed by it in good faith to be genuine and correct and to have been signed or sent by the proper ~~Person~~Person or Persons. ~~Each~~ Neither Administrative Agent nor any of their respective directors, officers, employees or agents shall have any responsibility to the Company or any Borrowing Subsidiary on account of the ~~Administrative Agents also may rely upon~~ failure of or delay in performance or breach by any ~~statement made~~ Lender of any of its obligations hereunder or 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. Each~~ Lender on account of the failure of or delay in performance or breach by any other Lender or the Company of any of their respective obligations hereunder or in connection herewith. The Administrative Agents may ~~consult with~~ execute any and all duties hereunder by or through their Affiliates, agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for the Borrowers), independent accountants and other experts~~ selected by ~~it,~~ them with respect to all matters arising hereunder and shall not be liable for any action taken or ~~not taken~~ suffered in good faith by it them in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. ~~Each of~~ The Lenders hereby acknowledge that the Administrative Agents ~~may perform~~ shall be under no duty to take any ~~and all of its duties and exercise its rights and powers~~ discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed by such Person. Each of~~ them pursuant to the ~~Administrative Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory~~ provisions of this Agreement unless they shall be requested in writing to do so by the ~~preceding paragraphs shall apply to any such sub-agent and to~~ Required Lenders. Subject, in the ~~Related Parties~~ case of ~~each~~ a resignation of ~~the~~ both Administrative ~~Agents and any such sub-agent~~Agents, 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 or Canadian Administrative Agent. Subject to the appointment and acceptance of a successor ~~Applicable~~ Administrative Agent as provided ~~in this paragraph~~below, ~~each of the~~ either Administrative ~~Agents~~ Agent may resign at any time by notifying the ~~Lenders, the Issuing Banks~~ Lenders and the ~~Borrower Representative~~Company. Upon any such ~~resignation~~resignation of both Administrative Agents, the Required Lenders shall have the ~~right, with the consent of the Borrowers (unless an Event of Default shall have occurred and be continuing),~~ right to appoint a ~~successor~~successor Administrative Agent acceptable to the Company. If no successor shall have been so appointed by the Required Lenders and ~~consented to by the Borrower (unless an Event of Default shall have occurred and be continuing) and~~ shall have accepted such appointment within 30 days after the retiring ~~agent gives~~ Administrative Agents give notice of ~~its~~ their resignation, then the retiring ~~agent~~ Administrative Agents may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ which shall be a ~~commercial~~ bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such ~~commercial~~ bank. Upon the acceptance of ~~its~~ any appointment as an Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ hereunder by a ~~successor~~successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agents and the retiring Administrative Agents shall be discharged from their duties and obligations hereunder. If only one of the Administrative Agents shall resign, the other Administrative Agent ~~or Canadian~~ shall become vested with all the rights, powers, privileges and duties of the retiring Administrative ~~Agent, as applicable,,~~ Agent and the retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrowers to a successor Administrative Agent or Canadian~~ After any Administrative Agent, as applicable, shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an Administrative Agent or Canadian Administrative Agent, as applicable, resigns ’s resignation hereunder, the provisions of this ~~Article, Section 2.17(d)~~ Article and Section ~~9.03~~ 8.5 shall continue in effect for ~~the~~ its benefit ~~of such retiring Person, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as ~~an Applicable~~ Administrative Agent. With respect to the Loans made by them hereunder, each 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 an Administrative Agent, and such Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Administrative Agent. Each Lender agrees (i) to reimburse the Administrative Agents, on demand, in the amount of its Applicable Percentage of any expenses incurred for the benefit of the Lenders by the Administrative Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Company and (ii) to indemnify and hold harmless the Administrative Agents and any of their respective directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against either of them in its capacity as an Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by either of them under this Agreement to the extent the same shall not have been reimbursed by the Company; provided that no Lender shall be liable to any Administrative Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Administrative Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. 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 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 each Applicable Administrative Agent or such other Person as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. The Syndication Agent, each Co-Documentation Agent and each Joint Lead Arranger and Joint Bookrunner shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.

Appears in 1 contract

Samples: Credit Facility Agreement (Bristol Myers Squibb Co)

The Administrative Agents. In order to expedite the transactions contemplated by this Agreement, each of JPMorgan Chase Bank and Citicorp North America, Inc. is hereby appointed to act as an Administrative Agent on behalf of the Lenders and CNAI is hereby appointed to act as Advance Agent on behalf of the Lenders. Each of the Lenders ~~and each of the Issuing Banks~~ hereby irrevocably ~~appoints the~~ authorizes each Administrative Agent ~~and~~(which term, ~~as applicable~~for purposes of this Article VII, shall be deemed to include the ~~Canadian Administrative~~ Advance Agent~~, as its agent and authorizes each of the Administrative Agents~~ ) to take such actions on ~~its behalf, including execution~~ behalf of ~~the other Loan Documents,~~ such Lender or holder and to exercise such powers as are specifically delegated to the ~~Applicable~~ Administrative Agents or an Administrative Agent individually, as the case may be, by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. ~~Each bank serving~~ CNAI 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 or any Borrowing Subsidiary of any Event of Default of which CNAI 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 Borrowing Subsidiary pursuant to this Agreement as received by CNAI. Notwithstanding the ~~Administrative Agent or Canadian Administrative Agent hereunder~~ foregoing, JPMCB shall have no duties under the ~~same rights and powers~~ Loan Documents in its capacity as ~~a Lender as any other Lender and may exercise the same as though it were not the~~ Administrative Agent. Neither Administrative Agent or Canadian Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the Administrative Agent or Canadian Administrative Agent hereunder. Neither of the Administrative Agents shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) neither of the Administrative Agents shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) neither of the Administrative Agents shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth in the Loan Documents, neither of the Administrative Agents shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or nor any of ~~its Subsidiaries that is communicated to~~ their respective directors, officers, employees or ~~obtained by such bank serving as the Administrative Agent of Canadian Administrative Agent or any of its Affiliates in any capacity. Neither of the Administrative Agents~~ agents shall be liable as such for any action taken or ~~not taken~~ omitted by ~~it with the consent~~ any of them except for its or ~~at the request of the Required Lenders (~~his or ~~such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its~~ her own gross negligence or willful misconduct~~. Neither of the Administrative Agents shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Person by the Borrower Representative~~ , or ~~a Lender, and such Person shall not~~ be responsible for ~~or have any duty to ascertain or inquire into (i)~~ any statement, warranty or representation ~~made in~~ herein or ~~in connection with any Loan Document, (ii)~~ the contents of any ~~certificate, report or other~~ document delivered ~~hereunder or~~ in connection ~~with~~ herewith, or be required to ascertain or to make any ~~Loan Document, (iii)~~ inquiry concerning the performance or observance by the Company or any Borrowing Subsidiary of any of the ~~covenants~~terms, conditions, covenants or agreements ~~or other terms or conditions set forth~~ contained in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Applicable Administrative Agentthis Agreement. ~~Each of the~~ The Administrative Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Administrative Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Administrative Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the 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. The Administrative Agents shall, in the absence of knowledge to the contrary, be entitled to rely ~~upon, and shall not incur~~ on any ~~liability for relying upon, any notice, request, certificate, consent, statement, instrument,~~ instrument or document ~~or other writing~~ believed by it in good faith to be genuine and correct and to have been signed or sent by the proper ~~Person~~Person or Persons. ~~Each~~ Neither Administrative Agent nor any of their respective directors, officers, employees or agents shall have any responsibility to the Company or any Borrowing Subsidiary on account of the ~~Administrative Agents also may rely upon~~ failure of or delay in performance or breach by any ~~statement made~~ Lender of any of its obligations hereunder or 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. Each~~ Lender on account of the failure of or delay in performance or breach by any other Lender or the Company of any of their respective obligations hereunder or in connection herewith. The Administrative Agents may ~~consult with~~ execute any and all duties hereunder by or through their Affiliates, agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for the Borrowers), independent accountants and other experts~~ selected by ~~it,~~ them with respect to all matters arising hereunder and shall not be liable for any action taken or ~~not taken~~ suffered in good faith by it them in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. ~~Each of~~ The Lenders hereby acknowledge that the Administrative Agents ~~may perform~~ shall be under no duty to take any ~~and all of its duties and exercise its rights and powers~~ discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed by such Person. Each of~~ them pursuant to the ~~Administrative Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory~~ provisions of this Agreement unless they shall be requested in writing to do so by the ~~preceding paragraphs shall apply to any such sub-agent and to~~ Required Lenders. Subject, in the ~~Related Parties~~ case of ~~each~~ a resignation of ~~the~~ both Administrative ~~Agents and any such sub-agent~~Agents, 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 or Canadian Administrative Agent. Subject to the appointment and acceptance of a successor ~~Applicable~~ Administrative Agent as provided ~~in this paragraph~~below, ~~each of the~~ either Administrative ~~Agents~~ Agent may resign at any time by notifying the ~~Lenders, the Issuing Banks~~ Lenders and the ~~Borrower Representative~~Company. Upon any such ~~resignation~~resignation of both Administrative Agents, the Required Lenders shall have the ~~right, with the consent of the Borrowers (unless an Event of Default shall have occurred and be continuing),~~ right to appoint a ~~successor~~successor Administrative Agent acceptable to the Company. If no successor shall have been so appointed by the Required Lenders and ~~consented to by the Borrower (unless an Event of Default shall have occurred and be continuing) and~~ shall have accepted such appointment within 30 days after the retiring ~~agent gives~~ Administrative Agents give notice of ~~its~~ their resignation, then the retiring ~~agent~~ Administrative Agents may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ which shall be a ~~commercial~~ bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such ~~commercial~~ bank. Upon the acceptance of ~~its~~ any appointment as an Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ hereunder by a ~~successor~~successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agents and the retiring Administrative Agents shall be discharged from their duties and obligations hereunder. If only one of the Administrative Agents shall resign, the other Administrative Agent ~~or Canadian~~ shall become vested with all the rights, powers, privileges and duties of the retiring Administrative ~~Agent, as applicable,,~~ Agent and the retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrowers to a successor Administrative Agent or Canadian~~ After any Administrative Agent, as applicable, shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an Administrative Agent or Canadian Administrative Agent, as applicable, resigns ’s resignation hereunder, the provisions of this ~~Article, Section 2.17(d)~~ Article and Section ~~9.03~~ 8.5 shall continue in effect for ~~the~~ its benefit ~~of such retiring Person, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as ~~an Applicable~~ Administrative Agent. With respect to the Loans made by them hereunder, each 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 an Administrative Agent, and such Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Administrative Agent. Each Lender agrees (i) to reimburse the Administrative Agents, on demand, in the amount of its Applicable Percentage of any expenses incurred for the benefit of the Lenders by the Administrative Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Company and (ii) to indemnify and hold harmless the Administrative Agents and any of their respective directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against either of them in its capacity as an Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by either of them under this Agreement to the extent the same shall not have been reimbursed by the Company; provided that no Lender shall be liable to any Administrative Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Administrative Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. 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 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 each Applicable Administrative Agent or such other Person as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. The Syndication Agent, each Co-Documentation Agent and each Joint Lead Arranger and Joint Bookrunner shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.

Appears in 1 contract

Samples: Credit Facility Agreement (Bristol Myers Squibb Co)

The Administrative Agents. Each of the Lenders and ~~each of~~ the Issuing ~~Banks~~ Lenders hereby irrevocably appoints ~~the~~ each Administrative Agent ~~and, as applicable, the Canadian Administrative Agent,~~ as its agent hereunder and under the other Loan Documents and authorizes each ~~of the~~ Administrative ~~Agents~~ Agent to take such actions on its ~~behalf, including execution of the other Loan Documents,~~ behalf and to exercise such powers as are delegated to ~~the Applicable~~ such Administrative Agent by the terms ~~of the Loan Documents~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. ~~Each bank~~ The Person serving as the U.S. Administrative Agent or the Canadian 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 or Canadian~~ an Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Loan Parties~~ any Borrower or any Subsidiary ~~of a Loan Party~~ or other Affiliate thereof as if it were not ~~the Administrative Agent or Canadian~~ an Administrative Agent hereunder. Neither ~~of the~~ Administrative ~~Agents~~ Agent shall have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) neither ~~of the~~ Administrative ~~Agents~~ Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) neither ~~of the~~ Administrative ~~Agents~~ Agent shall 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 Applicable~~ such Administrative Agent is required to exercise in writing ~~as directed~~ by the Required ~~Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02)~~Lenders, and (c) except as expressly set forth herein and in the other Loan Documents, neither ~~of the~~ Administrative ~~Agents~~ Agent shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any ~~Loan Party~~ Borrower or any of its Subsidiaries that is communicated to or obtained by ~~such~~ the bank serving as ~~the Administrative Agent of Canadian~~ Administrative Agent or any of its Affiliates in any capacity. Neither ~~of the~~ Administrative ~~Agents~~ Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders ~~(or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02)~~ or in the absence of its own gross negligence or willful misconduct. Neither ~~of the~~ Administrative ~~Agents~~ Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such ~~Person~~ Administrative Agent by the ~~Borrower Representative~~ Company or a Lender, and such ~~Person~~ Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection ~~with any Loan Document~~herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein or therein, (iv) the validity, enforceability, effectiveness or Credit Agreement 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 of the Collateral, or (vi~~) the satisfaction of any condition set forth in Article IV V or elsewhere ~~in any Loan Document~~herein or therein, other than to confirm receipt of items expressly required to be delivered to ~~such Applicable~~ the Administrative ~~Agent~~Agents. Each ~~of the~~ Administrative ~~Agents~~ Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each ~~of the~~ Administrative ~~Agents~~ 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. Each ~~of the~~ Administrative ~~Agents~~ Agent may consult with legal counsel (who may be counsel for ~~the Borrowers~~a Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each ~~of the~~ Administrative ~~Agents~~ Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such ~~Person~~Administrative Agent. Each ~~of the~~ Administrative ~~Agents~~ Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each ~~of the~~ Administrative ~~Agents~~ 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 or Canadian~~ Administrative Agent. ~~Subject to the appointment and acceptance of a successor Applicable~~ Either Administrative Agent ~~as provided in this paragraph, each of the Administrative Agents~~ may resign at any time by notifying the Lenders, the Issuing ~~Banks~~ Lenders and the ~~Borrower Representative~~Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrowers (unless an Event of Default shall have occurred and be continuing)~~Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and ~~consented to by the Borrower (unless an Event of Default shall have occurred and be continuing) and~~ shall have accepted such appointment within 30 days after the retiring ~~agent~~ Administrative Agent gives notice of its resignation, then the retiring ~~agent may~~Administrative Agent's resignation shall nonetheless become effective and (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and (2) the Required Lenders shall perform the duties of such Administrative Agent (and all payments and communications provided to be made by, ~~on behalf of~~ to or through such Administrative Agent shall instead be made by or to each Lender directly) until such time as the Required Lenders ~~and the Issuing Banks,~~ appoint a successor ~~Administrative Agent or Canadian Administrative Agent,~~ agent as ~~applicable, which shall be a commercial bank or an Affiliate of any such commercial bank~~provided for above in this paragraph. Upon the acceptance of its appointment as an Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent ~~or Canadian Administrative Agent, as applicable,,~~ and the retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ shall be discharged from its duties and obligations ~~hereunder~~hereunder (if not already discharged therefrom as provided above in this paragraph). The fees payable by the ~~Borrowers~~ Company to a successor Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrowers~~ Company and such successor. After an Administrative ~~Agent or Canadian Administrative~~ Agent~~, as applicable, resigns~~ 's resignation hereunder, the provisions of this ~~Article, Section 2.17(d)~~ Article and Section ~~9.03~~ 10.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring Person, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as ~~an Applicable~~ Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon either of the Administrative Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon either of the Administrative Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. 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 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 each Applicable Administrative Agent or such other Person as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. The Syndication Agent, each Co-Documentation Agent and each Joint Lead Arranger and Joint Bookrunner shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.

Appears in 1 contract

Samples: Credit Agreement (Bowater Inc)

The Administrative Agents. Each of the Lenders and each ~~of the~~ Issuing ~~Banks~~ Bank hereby irrevocably appoints each of the Administrative ~~Agent and, as applicable, the Canadian Administrative Agent,~~ Agents as its agent and authorizes ~~each of~~ the Administrative Agents to take such actions on its behalf, including execution of the other Loan ~~Documents~~Documents to which an Administrative Agent is a party, and to exercise such powers as are delegated to ~~the Applicable~~ each such Administrative ~~Agent~~ Agent, respectively, by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Each bank serving as ~~the Administrative Agent or Canadian~~ an 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 or Canadian~~ an Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not ~~the Administrative Agent or Canadian~~ an Administrative Agent hereunder. ~~Neither of the~~ No Administrative ~~Agents~~ Agent shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) ~~neither of the~~ an Administrative ~~Agents~~ Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~neither of the~~ an Administrative ~~Agents~~ Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that ~~the Applicable~~ such Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth in the Loan Documents, ~~neither of the~~ such Administrative ~~Agents~~ Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by ~~such~~ the bank serving as ~~the Administrative Agent of Canadian~~ an Administrative Agent or any of its Affiliates in any capacity. ~~Neither of the~~ An Administrative ~~Agents~~ Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. ~~Neither of the~~ An Administrative ~~Agents~~ Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such ~~Person~~ Administrative Agent by ~~the~~ a Borrower ~~Representative~~ or a Lender, and ~~such Person~~ the Administrative Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such ~~Applicable~~ Administrative Agent. Each ~~of the~~ Administrative ~~Agents~~ Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each ~~of the~~ Administrative ~~Agents~~ 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. Each ~~of the~~ Administrative ~~Agents~~ 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. Each ~~of the~~ Administrative ~~Agents~~ Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by ~~such Person~~each Administrative Agent. Each ~~of the~~ Administrative ~~Agents~~ Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of (i) each ~~of the~~ Administrative ~~Agents~~ Agent and (ii) 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 or Canadian~~ an Administrative Agent. Subject to the appointment and acceptance of a successor ~~Applicable~~ Administrative Agent as provided in this paragraph, ~~each of the~~ an Administrative ~~Agents~~ Agent may resign at any time by notifying the Lenders, the other Administrative Agents, the Issuing Banks and the ~~Borrower Representative~~Borrowing Agents. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrowers (unless an Event of Default shall have occurred and be continuing)~~Borrowing Agents, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and ~~consented to by the Borrower (unless an Event of Default shall have occurred and be continuing) and~~ shall have accepted such appointment within 30 days after the retiring ~~agent~~ Administrative Agent gives notice of its resignation, then ~~the~~ such retiring ~~agent~~ Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ which shall be a commercial bank with an office in New York, New York and/or a successor UK Administrative Agent which shall be a commercial bank with an office in London, England, as applicable, or an Affiliate of any such commercial bank. Upon the acceptance of its appointment as an Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative ~~Agent or Canadian Administrative~~ Agent, ~~as applicable,,~~ and ~~the~~ such retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an Administrative ~~Agent or Canadian Administrative~~ Agent~~, as applicable, resigns~~ 's resignation hereunder, the provisions of this ~~Article, Section 2.17(d)~~ Article and Section 9.03 shall continue in effect for the benefit of such retiring ~~Person~~Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an ~~Applicable~~ Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon ~~either of~~ the Administrative Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon ~~either of~~ the Administrative Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Each Lender hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of ~~the~~ any Administrative Agent; (b) ~~the~~ each Administrative Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the 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~~ Agents undertake 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~~ each 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 ~~each Applicable Administrative Agent or such other Person~~ as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. ~~The Syndication Agent~~None of the rights or obligations of any Administrative Agent under any Loan Document may be amended, ~~each Co-Documentation~~ supplemented or otherwise modified without the prior written consent of such Administrative Agent and the Required Lenders. The UK Borrower has requested that the UK Administrative Agent provide daily advice on each ~~Joint Lead Arranger and Joint Bookrunner~~ UK Business Day setting forth the UK Availability. The UK Administrative Agent shall not have any liability if it fails to provide such advice on any day. In addition, to the extent the UK Administrative Agent provides such advice, the UK Administrative shall not have any liability to any party in connection with such advice, including but not limited to, whether the information in such advice is accurate. The designation of (i) X.X. Xxxxxx Securities Inc. as "Sole Bookrunner and Sole Lead Arranger", and (ii) General Electric Capital Corporation and GMAC Commercial Finance LLC as "Co-Agents" shall not confer upon any of such entities any right, power, obligation, liability, responsibility or duty under this Agreement. Without limiting the foregoing, none of the Lenders, or Affiliates thereof, so identified as a "co-agent", "lead arranger" or "bookrunner" shall have or be deemed to have any fiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the parties so identified in deciding to enter into this Agreement ~~other than those applicable to all Lenders as such~~or in taking or not taking action hereunder.

Appears in 1 contract

Samples: Credit Agreement (Systemax Inc)

The Administrative Agents. Each of the Lenders and each ~~of the~~ Issuing ~~Banks~~ Bank hereby irrevocably appoints each of the Administrative ~~Agent and, as applicable, the Canadian Administrative Agent,~~ Agents as its agent and authorizes ~~each of~~ the Administrative Agents to take such actions on its behalf, including execution of the other Loan ~~Documents~~Documents to which an Administrative Agent is a party, and to exercise such powers as are delegated to ~~the Applicable~~ each such Administrative ~~Agent~~ Agent, respectively, by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Each bank serving as ~~the Administrative Agent or Canadian~~ an 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 or Canadian~~ an Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not ~~the Administrative Agent or Canadian~~ an Administrative Agent hereunder. ~~Neither of the~~ No Administrative ~~Agents~~ Agent shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) ~~neither of the~~ an Administrative ~~Agents~~ Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~neither of the~~ an Administrative ~~Agents~~ Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that ~~the Applicable~~ such Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth in the Loan Documents, ~~neither of the~~ such Administrative ~~Agents~~ Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by ~~such~~ the bank serving as ~~the Administrative Agent of Canadian~~ an Administrative Agent or any of its Affiliates in any capacity. ~~Neither of the~~ An Administrative ~~Agents~~ Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. ~~Neither of the~~ An Administrative ~~Agents~~ Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such ~~Person~~ Administrative Agent by ~~the~~ a Borrower ~~Representative~~ or a Lender, and ~~such Person~~ the Administrative Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such ~~Applicable~~ Administrative Agent. Each ~~of the~~ Administrative ~~Agents~~ Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each ~~of the~~ Administrative ~~Agents~~ 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. Each ~~of the~~ Administrative ~~Agents~~ 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. Each of the Administrative Agents may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Person. Each of the Administrative Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each of the Administrative Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent or Canadian Administrative Agent. Subject to the appointment and acceptance of a successor Applicable Administrative Agent as provided in this paragraph, each of the Administrative Agents may resign at any time by notifying the Lenders, the Issuing Banks and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrowers (unless an Event of Default shall have occurred and be continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and consented to by the Borrower (unless an Event of Default shall have occurred and be continuing) and shall have accepted such appointment within 30 days after the retiring agent gives notice of its resignation, then the retiring agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent or Canadian Administrative Agent, as applicable, which shall be a commercial bank or an Affiliate of any such commercial bank. Upon the acceptance of its appointment as an Administrative Agent or Canadian Administrative Agent, as applicable, hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent or Canadian Administrative Agent, as applicable,, and the retiring Administrative Agent or Canadian Administrative Agent, as applicable, shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent or Canadian Administrative Agent, as applicable, shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an Administrative Agent or Canadian Administrative Agent, as applicable, resigns hereunder, the provisions of this Article, Section 2.17(d) and Section 9.03 shall continue in effect for the benefit of such retiring Person, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an Applicable Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon either of the Administrative Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon either of the Administrative Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. 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 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 each Applicable Administrative Agent or such other Person as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. The Syndication Agent, each Co-Documentation Agent and each Joint Lead Arranger and Joint Bookrunner shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.

Appears in 1 contract

Samples: Credit Agreement (Calgon Carbon Corporation)

The Administrative Agents. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent and, as applicable, the ~~Canadian~~ Multicurrency Administrative Agent, as its agent and authorizes each of the Administrative Agents to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Applicable Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Each bank serving as the Administrative Agent or ~~Canadian~~ Multicurrency 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 or ~~Canadian~~ Multicurrency Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent hereunder. Neither of the Administrative Agents shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) neither of the Administrative Agents shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) neither of the Administrative Agents shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth in the Loan Documents, neither of the Administrative Agents shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by such bank serving as the Administrative Agent ~~of Canadian~~ or Multicurrency Administrative Agent or any of its Affiliates in any capacity. Neither of the Administrative Agents shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. Neither of the Administrative Agents shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Person by the Borrower Representative or a Lender, and such Person shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Applicable Administrative Agent. Each of the Administrative Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Administrative Agents 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. Each of the Administrative Agents may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Administrative Agents may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Person. Each of the Administrative Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each of the Administrative Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent. Subject to the appointment and acceptance of a successor Applicable Administrative Agent as provided in this paragraph, each of the Administrative Agents may resign at any time by notifying the Lenders, the Issuing Banks and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrowers (unless an Event of Default shall have occurred and be continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and consented to by the Borrower (unless an Event of Default shall have occurred and be continuing) and shall have accepted such appointment within 30 days after the retiring agent gives notice of its resignation, then the retiring agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent, as applicable, which shall be a commercial bank or an Affiliate of any such commercial bank. Upon the acceptance of its appointment as an Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent, as applicable, hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent, as applicable,, and the retiring Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent, as applicable, shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent, as applicable, shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent, as applicable, resigns hereunder, the provisions of this Article, Section 2.17(d) and Section 9.03 shall continue in effect for the benefit of such retiring Person, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an Applicable Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon either of the Administrative Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon either of the Administrative Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. 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 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 each Applicable Administrative Agent or such other Person as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. ~~The~~ Each Co-Syndication Agent, each Co-Documentation Agent and each Joint Lead Arranger and Joint Bookrunner shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. To the extent required by any applicable law, each Agent may withhold from any payment to any Lender under any Loan Document an amount equal to any applicable withholding Tax. If the IRS or any other Governmental Authority asserts a claim that such Agent did not properly withhold Tax from amounts paid to or for the account of any Lender (because the appropriate certification form was not delivered, was not properly executed, or fails to establish an exemption from, or reduction of, withholding Tax with respect to a particular type of payment, or because such Lender failed to notify such Agent or any other Person of a change in circumstances which rendered the exemption from, or reduction of, withholding Tax ineffective, or for any other reason), or such Agent reasonably determines that it was required to withhold Taxes from a prior payment but failed to do so, such Lender shall promptly indemnify such Agent fully for all amounts paid, directly or indirectly, by such Agent as Tax or otherwise, including penalties and interest, and together with all expenses incurred by such Agent, including legal expenses, allocated internal costs and out-of-pocket expenses. Each Agent may offset against any payment to any Lender under a Loan Document, any applicable withholding Tax that was required to be withheld from any prior payment to such Lender but which was not so withheld, as well as any other amounts for which such Agent is entitled to indemnification from such Lender under this Article VIII.

Appears in 1 contract

Samples: Credit Agreement (Levi Strauss & Co)

The Administrative Agents. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent and, as applicable, the ~~Canadian~~ Multicurrency Administrative Agent, as its agent and authorizes each of the Administrative Agents to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Applicable Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Each bank serving as the Administrative Agent or ~~Canadian~~ Multicurrency 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 or ~~Canadian~~ Multicurrency Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent hereunder. Neither of the Administrative Agents shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) neither of the Administrative Agents shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) neither of the Administrative Agents shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth in the Loan Documents, neither of the Administrative Agents shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by such bank serving as the Administrative Agent ~~of Canadian~~ or Multicurrency Administrative Agent or any of its Affiliates in any capacity. Neither of the Administrative Agents shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. Neither of the Administrative Agents shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Person by the Borrower Representative or a Lender, and such Person shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Applicable Administrative Agent. Each of the Administrative Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each of the Administrative Agents 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. Each of the Administrative Agents may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Administrative Agents may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Person. Each of the Administrative Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each of the Administrative Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent. Subject to the appointment and acceptance of a successor Applicable Administrative Agent as provided in this paragraph, each of the Administrative Agents may resign at any time by notifying the Lenders, the Issuing Banks and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrowers (unless an Event of Default shall have occurred and be continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and consented to by the Borrower (unless an Event of Default shall have occurred and be continuing) and shall have accepted such appointment within 30 days after the retiring agent gives notice of its resignation, then the retiring agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent, as applicable, which shall be a commercial bank or an Affiliate of any such commercial bank. Upon the acceptance of its appointment as an Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent, as applicable, hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent, as applicable,, and the retiring Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent, as applicable, shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent, as applicable, shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an anthe Administrative Agent or ~~Canadian~~ Multicurrency Administrative Agent, as applicable, resigns hereunder, the provisions of this Article, Section 2.17(d) and Section 9.03 shall continue in effect for the benefit of such retiring Person, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an Applicable Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon either of the Administrative Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon either of the Administrative Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. 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 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, and 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~~ AgentAgents 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~~ attorneyattorneys’ fees) incurred by each Applicable Administrative Agent or such other Person as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. ~~The~~ Each Co-Syndication Agent, each Co-Documentation Agent and each Joint Lead Arranger and Joint Bookrunner shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. To the extent required by any applicable law, each Agent may withhold from any payment to any Lender under any Loan Document an amount equal to any applicable withholding Tax. If the IRS or any other Governmental Authority asserts a claim that such Agent did not properly withhold Tax from amounts paid to or for the account of any Lender (because the appropriate certification form was not delivered, was not properly executed, or fails to establish an exemption from, or reduction of, withholding Tax with respect to a particular type of payment, or because such Lender failed to notify such Agent or any other Person of a change in circumstances which rendered the exemption from, or reduction of, withholding Tax ineffective, or for any other reason), or such Agent reasonably determines that it was required to withhold Taxes from a prior payment but failed to do so, such Lender shall promptly indemnify such Agent fully for all amounts paid, directly or indirectly, by such Agent as Tax or otherwise, including penalties and interest, and together with all expenses incurred by such Agent, including legal expenses, allocated internal costs and out-of-pocket expenses. Each Agent may offset against any payment to any Lender under a Loan Document, any applicable withholding Tax that was required to be withheld from any prior payment to such Lender but which was not so withheld, as well as any other amounts for which such Agent is entitled to indemnification from such Lender under this Article VIII.

Appears in 1 contract

Samples: Credit Agreement (Levi Strauss & Co)

The Administrative Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as the General Administrative Agent on behalf of the U.S. Lenders, JPMorgan Chase Bank, Tokyo Branch is hereby appointed to act as Japanese Administrative Agent on behalf of the Japanese Lenders, X.X.Xxxxxx Europe Limited is hereby appointed to act as European Administrative Agent on behalf of the Multicurrency Lenders and JPMCB is hereby appointed to act as Advance Agent on behalf of the Lenders. Each of the Lenders ~~and each of the Issuing Banks~~ hereby irrevocably ~~appoints the~~ authorizes each Administrative Agent ~~and~~(which term, ~~as applicable,~~ for purposes of this Article XII shall be deemed to include the ~~Canadian Administrative~~ Advance Agent~~, as its agent and authorizes each of the Administrative Agents~~ ) to take such actions on ~~its behalf, including execution~~ behalf of ~~the other Loan Documents,~~ such Lender or holder and to exercise such powers as are specifically delegated to the ~~Applicable~~ Administrative Agents or an Administrative Agent individually, as the case may be, by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. Each ~~bank serving as the~~ Administrative Agent ~~or Canadian Administrative Agent hereunder shall have~~ is hereby expressly authorized by the ~~same rights and powers in its capacity as a Lender as~~ Lenders, without hereby limiting any other Lender and may exercise the same as though it were not the Administrative Agent or Canadian Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the Administrative Agent or Canadian Administrative Agent hereunder. Neither of the Administrative Agents shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoingimplied authority, (a) ~~neither~~ to receive on behalf of the ~~Administrative Agents shall be subject~~ Lenders all payments of principal of and interest on the Loans, payments in respect of the Letters of Credit and all other amounts due to ~~any fiduciary or other implied duties~~the Lenders hereunder, ~~regardless~~ and promptly to distribute to each Lender its proper share of ~~whether a Default has occurred and is continuing,~~ each payment so received; (b) ~~neither~~ to give notice on behalf of the Administrative Agents shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage each of the Lenders ~~as shall be necessary under~~ to the ~~circumstances as provided~~ Credit Parties of any Event of Default of which such Administrative Agent has actual knowledge acquired in ~~Section 9.02),~~ connection with its agency hereunder; and (c) ~~except~~ to distribute to each Lender copies of all notices, financial statements and other materials delivered by any Credit Party pursuant to this Agreement as ~~expressly set forth in the Loan Documents, neither of~~ received by such Administrative Agent. Neither the Administrative Agents ~~shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or~~ nor any of ~~its Subsidiaries that is communicated to~~ their respective directors, officers, employees or ~~obtained by such bank serving as the Administrative Agent of Canadian Administrative Agent or any of its Affiliates in any capacity. Neither of the Administrative Agents~~ agents shall be liable as such for any action taken or ~~not taken~~ omitted by ~~it with the consent~~ any of them except for its or ~~at the request of the Required Lenders (~~his or ~~such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its~~ her own gross negligence or ~~willful~~ wilful misconduct~~. Neither of the Administrative Agents shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Person by the Borrower Representative~~ , or ~~a Lender, and such Person shall not~~ be responsible for ~~or have any duty to ascertain or inquire into (i)~~ any statement, warranty or representation ~~made in~~ herein or ~~in connection with any Loan Document, (ii)~~ the contents of any ~~certificate, report or other~~ document delivered ~~hereunder or~~ in connection ~~with~~ herewith, or be required to ascertain or to make any ~~Loan Document, (iii)~~ inquiry concerning the performance or observance by any Borrower of any of the ~~covenants~~terms, conditions, covenants or agreements ~~or other terms or conditions set forth~~ contained in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Applicable Administrative Agentthis Agreement. ~~Each of the~~ The Administrative Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Administrative Agents may deem and treat the Lender which makes any Loan or issues or participates in any Letter of Credit as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Administrative Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the 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. The Administrative Agents shall, in the absence of knowledge to the contrary, be entitled to rely ~~upon, and shall not incur~~ on any ~~liability for relying upon, any notice, request, certificate, consent, statement, instrument,~~ instrument or document ~~or other writing~~ believed by it in good faith to be genuine and correct and to have been signed or sent by the proper ~~Person~~Person or Persons. ~~Each of~~ Neither the Administrative Agents ~~also may rely upon~~ nor any ~~statement made~~ of their respective directors, officers, employees or agents shall have any responsibility 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. Each~~ Borrower on account of the failure of or delay in performance or breach by any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. The Administrative Agents may ~~consult with~~ execute any and all duties hereunder by or through their Affiliates, agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for the Borrowers), independent accountants and other experts~~ selected by ~~it,~~ them with due care with respect to all matters arising hereunder and shall not be liable for any action taken or ~~not taken~~ suffered in good faith by it them in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. ~~Each of~~ The Lenders hereby acknowledge that the Administrative Agents ~~may perform~~ shall be under no duty to take any ~~and all of its duties and exercise its rights and powers~~ discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed by such Person. Each of~~ them pursuant to the ~~Administrative Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory~~ provisions of this Agreement unless they shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each of the Administrative Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent or Canadian Administrative AgentRequired Lenders. Subject to the appointment and acceptance of a successor ~~Applicable~~ Administrative Agent as provided ~~in this paragraph~~below, ~~each of the~~ any Administrative ~~Agents~~ Agent may resign at any time by notifying the Lenders, the ~~Issuing Banks~~ other Administrative Agents and the ~~Borrower Representative~~Company. Upon any such ~~resignation~~resignation of an Administrative Agent, the Required Lenders shall have the ~~right, with the consent of the Borrowers (unless an Event of Default shall have occurred and be continuing),~~ right to appoint a ~~successor~~successor Administrative Agent acceptable to the Company. If no successor shall have been so appointed by the Required Lenders and ~~consented to by the Borrower (unless an Event of Default shall have occurred and be continuing) and~~ shall have accepted such appointment within 30 days after the retiring ~~agent~~ Administrative Agent gives notice of its resignation, then the retiring ~~agent~~ Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ which shall be a ~~commercial~~ bank having a combined capital and surplus of at least $500,000,000 (or an any Affiliate of ~~any~~ such ~~commercial~~ bank), (i) with, in the case of the U.S. Commitments, an office in New York, New York, (ii) with, in the case of the Japanese Commitments, an office in Tokyo, Japan, or (iii) with, in the case of the Multicurrency Commitments, an office in London. Upon the acceptance of ~~its~~ any appointment as an Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ hereunder by a ~~successor~~successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,,~~ and the retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrowers to a successor Administrative Agent or Canadian~~ After any Administrative Agent, as applicable, shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an Administrative Agent or Canadian Administrative Agent, as applicable, resigns 's resignation hereunder, the provisions of this ~~Article, Section 2.17(d)~~ Article XII and Section ~~9.03~~ 13.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Person, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as ~~an Applicable~~ Administrative Agent. With respect to the Loans made by, or Letters of Credit issued by or participated in by, them hereunder, each 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 an Administrative Agent, and such Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Administrative Agent. Each Lender agrees (i) to reimburse the Administrative Agents, on demand, in the amount of its pro rata share of any expenses incurred for the benefit of the Lenders by the Administrative Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (ii) to indemnify and hold harmless the Administrative Agents and any of their respective directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against either of them in its capacity as an Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by either of them under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Administrative Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or wilful misconduct of such Administrative Agent or any of its directors, officers, employees or agents. For purposes hereof, a Lender's "pro rata share" shall be determined based upon its share of the sum of the aggregate Revolving Credit Exposure, outstanding Term Loans and unused Commitments at the time. Each Lender acknowledges that it has, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. 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 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 each Applicable Administrative Agent or such other Person as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. The Syndication Agent, each Co-Documentation Agent and each Joint Lead Arranger and Joint Bookrunner shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.

Appears in 1 contract

Samples: Revolving Credit and Term Loan Agreement (Zimmer Holdings Inc)

The Administrative Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as the General Administrative Agent on behalf of the U.S. Lenders, JPMorgan Chase Bank, N.A., Tokyo Branch is hereby appointed to act as Japanese Administrative Agent on behalf of the Japanese Lenders, J.X. Xxxxxx Europe Limited is hereby appointed to act as European Administrative Agent on behalf of the Multicurrency Lenders and JPMCB is hereby appointed to act as Advance Agent on behalf of the Lenders. Each of the Lenders ~~and each of the Issuing Banks~~ hereby irrevocably ~~appoints the~~ authorizes each Administrative Agent ~~and~~(which term, ~~as applicable,~~ for purposes of this Article XII shall be deemed to include the ~~Canadian Administrative~~ Advance Agent~~, as its agent and authorizes each of the Administrative Agents~~ ) to take such actions on ~~its behalf, including execution~~ behalf of ~~the other Loan Documents,~~ such Lender or holder and to exercise such powers as are specifically delegated to the ~~Applicable~~ Administrative Agents or an Administrative Agent individually, as the case may be, by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. Each ~~bank serving as the~~ Administrative Agent ~~or Canadian Administrative Agent hereunder shall have~~ is hereby expressly authorized by the ~~same rights and powers in its capacity as a Lender as~~ Lenders, without hereby limiting any other Lender and may exercise the same as though it were not the Administrative Agent or Canadian Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the Administrative Agent or Canadian Administrative Agent hereunder. Neither of the Administrative Agents shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoingimplied authority, (a) ~~neither~~ to receive on behalf of the ~~Administrative Agents shall be subject~~ Lenders all payments of principal of and interest on the Loans, payments in respect of the Letters of Credit and all other amounts due to ~~any fiduciary or other implied duties~~the Lenders hereunder, ~~regardless~~ and promptly to distribute to each Lender its proper share of ~~whether a Default has occurred and is continuing,~~ each payment so received; (b) ~~neither~~ to give notice on behalf of the Administrative Agents shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage each of the Lenders ~~as shall be necessary under~~ to the ~~circumstances as provided~~ Credit Parties of any Event of Default of which such Administrative Agent has actual knowledge acquired in ~~Section 9.02),~~ connection with its agency hereunder; and (c) ~~except~~ to distribute to each Lender copies of all notices, financial statements and other materials delivered by any Credit Party pursuant to this Agreement as ~~expressly set forth in the Loan Documents, neither of~~ received by such Administrative Agent. Neither the Administrative Agents ~~shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or~~ nor any of ~~its Subsidiaries that is communicated to~~ their respective directors, officers, employees or ~~obtained by such bank serving as the Administrative Agent of Canadian Administrative Agent or any of its Affiliates in any capacity. Neither of the Administrative Agents~~ agents shall be liable as such for any action taken or ~~not taken~~ omitted by ~~it with the consent~~ any of them except for its or ~~at the request of the Required Lenders (~~his or ~~such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its~~ her own gross negligence or ~~willful~~ wilful misconduct~~. Neither of the Administrative Agents shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Person by the Borrower Representative~~ , or ~~a Lender, and such Person shall not~~ be responsible for ~~or have any duty to ascertain or inquire into (i)~~ any statement, warranty or representation ~~made in~~ herein or ~~in connection with any Loan Document, (ii)~~ the contents of any ~~certificate, report or other~~ document delivered ~~hereunder or~~ in connection ~~with~~ herewith, or be required to ascertain or to make any ~~Loan Document, (iii)~~ inquiry concerning the performance or observance by any Borrower of any of the ~~covenants~~terms, conditions, covenants or agreements ~~or other terms or conditions set forth~~ contained in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Applicable Administrative Agentthis Agreement. ~~Each of the~~ The Administrative Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Administrative Agents may deem and treat the Lender which makes any Loan or issues or participates in any Letter of Credit as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Administrative Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the 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. The Administrative Agents shall, in the absence of knowledge to the contrary, be entitled to rely ~~upon, and shall not incur~~ on any ~~liability for relying upon, any notice, request, certificate, consent, statement, instrument,~~ instrument or document ~~or other writing~~ believed by it in good faith to be genuine and correct and to have been signed or sent by the proper ~~Person~~Person or Persons. ~~Each of~~ Neither the Administrative Agents ~~also may rely upon~~ nor any ~~statement made~~ of their respective directors, officers, employees or agents shall have any responsibility 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. Each~~ Borrower on account of the failure of or delay in performance or breach by any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. The Administrative Agents may ~~consult with~~ execute any and all duties hereunder by or through their respective branches, Affiliates, agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for the Borrowers), independent accountants and other experts~~ selected by ~~it,~~ them with due care with respect to all matters arising hereunder and shall not be liable for any action taken or ~~not taken~~ suffered in good faith by it them in accordance with the advice of ~~any~~ such counsel. Without limiting the foregoing, ~~accountants~~ any Administrative Agent may, by notice to the Company and the applicable Borrower, designate any of its branches or ~~experts~~Affiliates as the Person to receive any or all notices (including Borrowing Requests and Interest Election Requests) to be delivered to such Administrative Agent pursuant to this Agreement. ~~Each of~~ The Lenders hereby acknowledge that the Administrative Agents ~~may perform~~ shall be under no duty to take any ~~and all of its duties and exercise its rights and powers~~ discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed by such Person. Each of~~ them pursuant to the ~~Administrative Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory~~ provisions of this Agreement unless they shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each of the Administrative Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent or Canadian Administrative AgentRequired Lenders. Subject to the appointment and acceptance of a successor ~~Applicable~~ Administrative Agent as provided ~~in this paragraph~~below, ~~each of the~~ any Administrative ~~Agents~~ Agent may resign at any time by notifying the Lenders, the ~~Issuing Banks~~ other Administrative Agents and the ~~Borrower Representative~~Company. Upon any such ~~resignation~~resignation of an Administrative Agent, the Required Lenders shall have the ~~right, with the consent of the Borrowers (unless an Event of Default shall have occurred and be continuing),~~ right to appoint a ~~successor~~successor Administrative Agent acceptable to the Company. If no successor shall have been so appointed by the Required Lenders and ~~consented to by the Borrower (unless an Event of Default shall have occurred and be continuing) and~~ shall have accepted such appointment within 30 days after the retiring ~~agent~~ Administrative Agent gives notice of its resignation, then the retiring ~~agent~~ Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ which shall be a ~~commercial~~ bank having a combined capital and surplus of at least $500,000,000 (or an any Affiliate of ~~any~~ such ~~commercial~~ bank), (i) with, in the case of the U.S. Commitments, an office in New York, New York, (ii) with, in the case of the Japanese Commitments, an office in Tokyo, Japan, or (iii) with, in the case of the Multicurrency Commitments, an office in London. Upon the acceptance of ~~its~~ any appointment as an Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ hereunder by a ~~successor~~successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,,~~ and the retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrowers to a successor Administrative Agent or Canadian~~ After any Administrative Agent, as applicable, shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an Administrative Agent or Canadian Administrative Agent, as applicable, resigns ’s resignation hereunder, the provisions of this ~~Article, Section 2.17(d)~~ Article XII and Section ~~9.03~~ 13.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Person, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as ~~an Applicable~~ Administrative Agent. With respect to the Loans made by, or Letters of Credit issued by or participated in by, them hereunder, each 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 an Administrative Agent, and such Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Administrative Agent. Each Lender agrees (i) to reimburse the Administrative Agents, on demand, in the amount of its Applicable Percentage of any expenses incurred for the benefit of the Lenders by the Administrative Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (ii) to indemnify and hold harmless the Administrative Agents and any of their respective directors, officers, employees or agents, on demand, in the amount of its Applicable Percentage, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against either of them in its capacity as an Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by either of them under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Administrative Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or wilful misconduct of such Administrative Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. 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 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 each Applicable Administrative Agent or such other Person as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. The Syndication Agent, each Co-Documentation Agent and each Joint Lead Arranger and Joint Bookrunner shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.

Appears in 1 contract

Samples: Credit Agreement (Zimmer Holdings Inc)

The Administrative Agents. Each of the Lenders and ~~each of~~ the Issuing Banks hereby irrevocably appoints each of the Administrative ~~Agent and, as applicable, the Canadian Administrative Agent,~~ Agents as its agent and authorizes each ~~of the~~ Administrative ~~Agents~~ Agent to take such actions on its ~~behalf, including execution of the other Loan Documents,~~ behalf and to exercise such powers as are delegated to ~~the Applicable~~ such Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Each ~~bank~~ financial institution serving as ~~the Administrative Agent or Canadian~~ an 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 or Canadian~~ an Administrative Agent, and such ~~bank~~ financial institution and its Affiliates may accept deposits from, lend money to 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 or Canadian~~ an Administrative Agent hereunder. ~~Neither of the~~ No Administrative ~~Agents~~ Agent shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) ~~neither of the~~ an Administrative ~~Agents~~ Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a an Event of Default has occurred and is continuing, (b) ~~neither of the~~ an Administrative ~~Agents~~ Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that ~~the Applicable~~ such Administrative Agent is required to exercise in writing as directed by the applicable Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~9.03), and (c) except as expressly set forth in the Loan Documents, ~~neither of the~~ such Administrative ~~Agents~~ Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any of its Subsidiaries that is communicated to or obtained by ~~such bank~~ the financial institution serving as ~~the Administrative Agent of Canadian~~ an Administrative Agent or any of its Affiliates in any capacity. ~~Neither of the~~ An Administrative ~~Agents~~ Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~9.03) or in the absence of its own gross negligence or willful misconduct. ~~Neither of the~~ An Administrative ~~Agents~~ Agent shall be deemed not to have knowledge of any Event of Default unless and until written notice thereof is given to such ~~Person~~ Administrative Agent by the Administrative Borrower ~~Representative~~ or a Lender, and ~~such Person~~ an Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v~~) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vi~~) the satisfaction of any condition set forth in Article IV IV, the Closing Checklist or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such ~~Applicable~~ Administrative Agent. Each ~~of the~~ Administrative ~~Agents~~ Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each ~~of the~~ Administrative ~~Agents~~ 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. Each ~~of the~~ Administrative ~~Agents~~ 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. Each ~~of the~~ Administrative ~~Agents~~ Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such ~~Person~~Administrative Agent. Each ~~of the~~ Administrative ~~Agents~~ Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each ~~of the~~ Administrative ~~Agents~~ 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 or Canadian~~ an Administrative Agent. Subject to the appointment and acceptance of a successor ~~Applicable~~ Administrative Agent as provided in this paragraph, ~~each of the~~ an Administrative ~~Agents~~ Agent may resign at any time by notifying the Lenders, the other Administrative Agent, the Issuing Banks and the ~~Borrower Representative~~Administrative Borrower. Upon any such resignation, the applicable Required Lenders shall have the right, in consultation with the ~~consent of the Borrowers (unless an Event of Default shall have occurred and be continuing)~~Administrative Borrower, to appoint a successor. If no successor shall have been so appointed by ~~the~~ such Required Lenders ~~and consented to by the Borrower (unless an Event of Default shall have occurred and be continuing)~~ and shall have accepted such appointment within 30 days after the retiring ~~agent~~ Administrative Agent gives notice of its resignation, then the retiring ~~agent~~ Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ which shall be a commercial bank or an Affiliate of any such commercial bank. Upon the acceptance of its appointment as an Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative ~~Agent or Canadian Administrative~~ Agent~~, as applicable,~~, and the retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an Administrative ~~Agent or Canadian Administrative~~ Agent~~, as applicable, resigns~~ ’s resignation hereunder, the provisions of this ~~Article, Section 2.17(d)~~ Article VIII and Section ~~9.03~~ 9.04 shall continue in effect for the benefit of such retiring ~~Person~~Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as ~~an Applicable~~ Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon either ~~of the~~ Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon either ~~of the~~ Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. No Administrative Agent shall have any obligation to any of the Lenders to ensure that the Collateral exists, is owned by the Loan Parties, is cared for, protected or insured, is unencumbered by others, or that the Liens granted to the Collateral Agents therein have been properly, sufficiently or lawfully created, perfected, protected or enforced, or that such Liens are entitled to any particular priority, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, each Administrative Agent may act in any manner it may deem appropriate, in its sole discretion given such Administrative Agent’s own interest in the Collateral in its capacity as one of the Lenders and that no Administrative Agent shall have any other duty or liability whatsoever to any Lender as to any of the foregoing. Each Lender hereby appoints each other Lender as its agent for the purpose of perfecting Liens, for the benefit of the Collateral Agents and the Secured Parties, in assets which, in accordance with Article 9 of the UCC or any other applicable law can be perfected only by possession. Should any Lender (other than a Collateral Agent) obtain possession of any such Collateral, such Lender shall notify the Collateral Agents thereof, and, promptly upon a Collateral Agent’s request therefor shall deliver such Collateral to such Collateral Agent or otherwise deal with such Collateral in accordance with such Collateral Agent’s instructions. Each Lender hereby agrees that (a) it ~~has~~ is deemed to have requested that the Administrative Agents furnish such Lender, promptly after it becomes available, a copy of each Report prepared by or on behalf of the Administrative ~~Agent~~Agents or JPMorgan Chase Bank, N.A. or its Affiliates; (b) none of the Administrative ~~Agent~~ Agents or JPMorgan Chase Bank, N.A. or its Affiliates (i) makes no any representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a ~~Report and~~ Report, or (ii) shall ~~not~~ be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that the Administrative Agents, JPMorgan Chase Bank, N.A. or its Affiliates or any ~~Person~~ other party performing any ~~field~~ audit or 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 none of the Administrative ~~Agent~~ Agents or JPMorgan Chase Bank, N.A. or its Affiliates undertakes no any 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 and not distribute any Report to any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative ~~Agent~~ Agents, JPMorgan Chase Bank, N.A. and its Affiliates 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 ~~each Applicable~~ the Administrative ~~Agent or~~ Agents, JPMorgan Chase Bank, N.A. and its Affiliates and any such other Person preparing a Report as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. The Syndication Agent, each Co-Documentation Agent and each Joint Lead Arranger and Joint Bookrunner shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.

Appears in 1 contract

Samples: Credit Agreement (Progress Rail Services, Inc.)

The Administrative Agents. In order to expedite the transactions contemplated by this Agreement, each of The Chase Manhattan Bank and Citibank, N.A. is hereby appointed to act as an Administrative Agent on behalf of the Lenders and Citibank is hereby appointed to act as Advance Agent on behalf of the Lenders. Each of the Lenders ~~and each of the Issuing Banks~~ hereby irrevocably ~~appoints the~~ authorizes each Administrative Agent ~~and~~(which term, ~~as applicable~~for purposes of this Article VII, shall be deemed to include the ~~Canadian Administrative~~ Advance Agent~~, as its agent and authorizes each of the Administrative Agents~~ ) to take such actions on ~~its behalf, including execution~~ behalf of ~~the other Loan Documents,~~ such Lender or holder and to exercise such powers as are specifically delegated to the ~~Applicable~~ Administrative Agents or an Administrative Agent individually, as the case may be, by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. ~~Each bank serving as~~ Citibank is hereby expressly authorized by the ~~Administrative Agent or Canadian Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as~~ Lenders, without hereby limiting any other Lender and may exercise the same as though it were not the Administrative Agent or Canadian Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the Administrative Agent or Canadian Administrative Agent hereunder. Neither of the Administrative Agents shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoingimplied authority, (a) ~~neither~~ to receive on behalf of the ~~Administrative Agents shall be subject~~ Lenders all payments of principal of and interest on the Loans and all other amounts due to ~~any fiduciary or other implied duties~~the Lenders hereunder, ~~regardless~~ and promptly to distribute to each Lender its proper share of ~~whether a Default has occurred and is continuing,~~ each payment so received; (b) ~~neither~~ to give notice on behalf of the Administrative Agents shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage each of the Lenders ~~as shall be necessary under~~ to the ~~circumstances as provided~~ Company or any Borrowing Subsidiary of any Event of Default of which Citibank has actual knowledge acquired in ~~Section 9.02),~~ connection with its agency hereunder; and (c) ~~except as expressly set forth in~~ to distribute to each Lender copies of all notices, financial statements and other materials delivered by the ~~Loan Documents, neither of the Administrative Agents shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party~~ Company or any ~~of its Subsidiaries that is communicated~~ Borrowing Subsidiary pursuant to ~~or obtained~~ this Agreement as received by ~~such bank serving as the~~ Citibank. Neither Administrative Agent ~~of Canadian Administrative Agent or~~ nor any of ~~its Affiliates in any capacity. Neither of the Administrative Agents~~ their respective directors, officers, employees or agents shall be liable as such for any action taken or ~~not taken~~ omitted by ~~it with the consent~~ any of them except for its or ~~at the request of the Required Lenders (~~his or ~~such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its~~ her own gross negligence or willful misconduct~~. Neither of the Administrative Agents shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Person by the Borrower Representative~~ , or ~~a Lender, and such Person shall not~~ be responsible for ~~or have any duty to ascertain or inquire into (i)~~ any statement, warranty or representation ~~made in~~ herein or ~~in connection with any Loan Document, (ii)~~ the contents of any ~~certificate, report or other~~ document delivered ~~hereunder or~~ in connection ~~with~~ herewith, or be required to ascertain or to make any ~~Loan Document, (iii)~~ inquiry concerning the performance or observance by the Company or any Borrowing Subsidiary of any of the ~~covenants~~terms, conditions, covenants or agreements ~~or other terms or conditions set forth~~ contained in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Applicable Administrative Agentthis Agreement. ~~Each of the~~ The Administrative Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Administrative Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Administrative Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the 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. The Administrative Agents shall, in the absence of knowledge to the contrary, be entitled to rely ~~upon, and shall not incur~~ on any ~~liability for relying upon, any notice, request, certificate, consent, statement, instrument,~~ instrument or document ~~or other writing~~ believed by it in good faith to be genuine and correct and to have been signed or sent by the proper ~~Person~~Person or Persons. ~~Each~~ Neither Administrative Agent nor any of their respective directors, officers, employees or agents shall have any responsibility to the Company or any Borrowing Subsidiary on account of the ~~Administrative Agents also may rely upon~~ failure of or delay in performance or breach by any ~~statement made~~ Lender of any of its obligations hereunder or 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. Each~~ Lender on account of the failure of or delay in performance or breach by any other Lender or the Company of any of their respective obligations hereunder or in connection herewith. The Administrative Agents may ~~consult with~~ execute any and all duties hereunder by or through their Affiliates, agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for the Borrowers), independent accountants and other experts~~ selected by ~~it,~~ them with respect to all matters arising hereunder and shall not be liable for any action taken or ~~not taken~~ suffered in good faith by it them in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. ~~Each of~~ The Lenders hereby acknowledge that the Administrative Agents ~~may perform~~ shall be under no duty to take any ~~and all of its duties and exercise its rights and powers~~ discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed by such Person. Each of~~ them pursuant to the ~~Administrative Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory~~ provisions of this Agreement unless they shall be requested in writing to do so by the ~~preceding paragraphs shall apply to any such sub-agent and to~~ Required Lenders. Subject, in the ~~Related Parties~~ case of ~~each~~ a resignation of ~~the~~ both Administrative ~~Agents and any such sub-agent~~Agents, 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 or Canadian Administrative Agent. Subject to the appointment and acceptance of a successor ~~Applicable~~ Administrative Agent as provided ~~in this paragraph~~below, ~~each of the~~ either Administrative ~~Agents~~ Agent may resign at any time by notifying the ~~Lenders, the Issuing Banks~~ Lenders and the ~~Borrower Representative~~Company. Upon any such ~~resignation~~resignation of both Administrative Agents, the Required Lenders shall have the ~~right, with the consent of the Borrowers (unless an Event of Default shall have occurred and be continuing),~~ right to appoint a ~~successor~~successor Administrative Agent acceptable to the Company. If no successor shall have been so appointed by the Required Lenders and ~~consented to by the Borrower (unless an Event of Default shall have occurred and be continuing) and~~ shall have accepted such appointment within 30 days after the retiring ~~agent gives~~ Administrative Agents give notice of ~~its~~ their resignation, then the retiring ~~agent~~ Administrative Agents may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ which shall be a ~~commercial~~ bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such ~~commercial~~ bank. Upon the acceptance of ~~its~~ any appointment as an Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ hereunder by a ~~successor~~successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agents and the retiring Administrative Agents shall be discharged from their duties and obligations hereunder. If only one of the Administrative Agents shall resign, the other Administrative Agent ~~or Canadian~~ shall become vested with all the rights, powers, privileges and duties of the retiring Administrative ~~Agent, as applicable,,~~ Agent and the retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrowers to a successor Administrative Agent or Canadian~~ After any Administrative Agent, as applicable, shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an Administrative Agent or Canadian Administrative Agent, as applicable, resigns 's resignation hereunder, the provisions of this ~~Article, Section 2.17(d)~~ Article and Section ~~9.03~~ 8.5 shall continue in effect for ~~the~~ its benefit ~~of such retiring Person, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as ~~an Applicable~~ Administrative Agent. With respect to the Loans made by them hereunder, each 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 an Administrative Agent, and such Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Administrative Agent. Each Lender agrees (i) to reimburse the Administrative Agents, on demand, in the amount of its Applicable Percentage of any expenses incurred for the benefit of the Lenders by the Administrative Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Company and (ii) to indemnify and hold harmless the Administrative Agents and any of their respective directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against either of them in its capacity as an Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by either of them under this Agreement to the extent the same shall not have been reimbursed by the Company; provided that no Lender shall be liable to any Administrative Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Administrative Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. 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 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 each Applicable Administrative Agent or such other Person as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. The Syndication Agent, each Co-Documentation Agent and each Joint Lead Arranger and Joint Bookrunner shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.

Appears in 1 contract

Samples: 364 Day Competitive Advance and Revolving Credit Facility Agreement (Bristol Myers Squibb Co)

The Administrative Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as the General Administrative Agent on behalf of the U.S. Lenders, JPMorgan Chase Bank, N.A., Tokyo Branch is hereby appointed to act as Japanese Administrative Agent on behalf of the Japanese Lenders, X.X. Xxxxxx Europe Limited is hereby appointed to act as European Administrative Agent on behalf of the Multicurrency Lenders and JPMCB is hereby appointed to act as Advance Agent on behalf of the Lenders. Each of the Lenders ~~and each of the Issuing Banks~~ hereby irrevocably ~~appoints the~~ authorizes each Administrative Agent ~~and~~(which term, ~~as applicable,~~ for purposes of this Article XI shall be deemed to include the ~~Canadian Administrative~~ Advance Agent~~, as its agent and authorizes each of the Administrative Agents~~ ) to take such actions on ~~its behalf, including execution~~ behalf of ~~the other Loan Documents,~~ such Lender or holder and to exercise such powers as are specifically delegated to the ~~Applicable~~ Administrative Agents or an Administrative Agent individually, as the case may be, by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. Each ~~bank serving as the~~ Administrative Agent ~~or Canadian~~ 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, payments in respect of the Letters of Credit 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 Borrowers of any Event of Default of which such Administrative Agent ~~hereunder shall have the same rights~~ has actual knowledge acquired in connection with its agency hereunder; and ~~powers in its capacity~~ (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as ~~a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent or Canadian~~ received by such Administrative Agent. Notwithstanding anything herein to the contrary, and such bank and its Affiliates may accept deposits from, lend money to 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 or Canadian Administrative Agent hereunder. Neither none of the ~~Administrative Agents~~ Arrangers, syndication agents, documentation agents or bookrunners listed on the cover page hereof shall have any duties or obligations ~~except those expressly set forth in~~ under this Agreement or any of the other Loan Documents~~. Without limiting~~ , except in its capacity, as applicable, as the ~~generality~~ General Administrative Agent, the Japanese Administrative Agent, the European Administrative Agent, an Issuing Lender or a Lender under this Agreement, but all such Persons shall have the benefit of the ~~foregoing, (a) neither of~~ indemnities provided for hereunder. Neither the Administrative Agents shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) neither of the Administrative Agents shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth in the Loan Documents, neither of the Administrative Agents shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or nor any of ~~its Subsidiaries that is communicated to~~ their respective directors, officers, employees or ~~obtained by such bank serving as the Administrative Agent of Canadian Administrative Agent or any of its Affiliates in any capacity. Neither of the Administrative Agents~~ agents shall be liable as such for any action taken or ~~not taken~~ omitted by ~~it with the consent~~ any of them except for its or ~~at the request of the Required Lenders (~~his or ~~such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its~~ her own gross negligence or ~~willful~~ wilful misconduct~~. Neither of the Administrative Agents shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Person by the Borrower Representative~~ , or ~~a Lender, and such Person shall not~~ be responsible for ~~or have any duty to ascertain or inquire into (i)~~ any statement, warranty or representation ~~made in~~ herein or ~~in connection with any Loan Document, (ii)~~ the contents of any ~~certificate, report or other~~ document delivered ~~hereunder or~~ in connection ~~with~~ herewith, or be required to ascertain or to make any ~~Loan Document, (iii)~~ inquiry concerning the performance or observance by any Borrower of any of the ~~covenants~~terms, conditions, covenants or agreements ~~or other terms or conditions set forth~~ contained in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Applicable Administrative Agentthis Agreement. ~~Each of the~~ The Administrative Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Administrative Agents may deem and treat the Lender which makes any Loan or issues or participates in any Letter of Credit as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Administrative Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the 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. The Administrative Agents shall, in the absence of knowledge to the contrary, be entitled to rely ~~upon, and shall not incur~~ on any ~~liability for relying upon, any notice, request, certificate, consent, statement, instrument,~~ instrument or document ~~or other writing~~ believed by it in good faith to be genuine and correct and to have been signed or sent by the proper ~~Person~~Person or Persons. ~~Each of~~ Neither the Administrative Agents ~~also may rely upon~~ nor any ~~statement made~~ of their respective directors, officers, employees or agents shall have any responsibility 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. Each~~ Borrower on account of the failure of or delay in performance or breach by any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. The Administrative Agents may ~~consult with~~ execute any and all duties hereunder by or through their respective branches, Affiliates, agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for the Borrowers), independent accountants and other experts~~ selected by ~~it,~~ them with due care with respect to all matters arising hereunder and shall not be liable for any action taken or ~~not taken~~ suffered in good faith by it them in accordance with the advice of ~~any~~ such counsel. Without limiting the foregoing, ~~accountants~~ any Administrative Agent may, by notice to the Company and the applicable Borrower, designate any of its branches or ~~experts~~Affiliates as the Person to receive any or all notices (including Borrowing Requests and Interest Election Requests) to be delivered to such Administrative Agent pursuant to this Agreement. ~~Each of~~ The Lenders hereby acknowledge that the Administrative Agents ~~may perform~~ shall be under no duty to take any ~~and all of its duties and exercise its rights and powers~~ discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed by such Person. Each of~~ them pursuant to the ~~Administrative Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory~~ provisions of this Agreement unless they shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each of the Administrative Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent or Canadian Administrative AgentRequired Lenders. Subject to the appointment and acceptance of a successor ~~Applicable~~ Administrative Agent as provided ~~in this paragraph~~below, ~~each of the~~ any Administrative ~~Agents~~ Agent may resign at any time by notifying the Lenders, the ~~Issuing Banks~~ other Administrative Agents and the ~~Borrower Representative~~Company. Upon any such ~~resignation~~resignation of an Administrative Agent, the Required Lenders shall have the ~~right, with the consent of the Borrowers (unless an Event of Default shall have occurred and be continuing),~~ right to appoint a ~~successor~~successor Administrative Agent acceptable to the Company. If no successor shall have been so appointed by the Required Lenders and ~~consented to by the Borrower (unless an Event of Default shall have occurred and be continuing) and~~ shall have accepted such appointment within 30 days after the retiring ~~agent~~ Administrative Agent gives notice of its resignation, then the retiring ~~agent~~ Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ which shall be a ~~commercial~~ bank having a combined capital and surplus of at least $500,000,000 (or an any Affiliate of ~~any~~ such ~~commercial~~ bank), (i) with, in the case of the U.S. Commitments, an office in New York, New York, (ii) with, in the case of the Japanese Commitments, an office in Tokyo, Japan, or (iii) with, in the case of the Multicurrency Commitments, an office in London. Upon the acceptance of ~~its~~ any appointment as an Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ hereunder by a ~~successor~~successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,,~~ and the retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ shall be the same as those payable to its predecessor unless otherwise agreed ~~between~~ by the ~~Borrowers~~ Company and such successor. After ~~an Administrative Agent or Canadian~~ any Administrative Agent~~, as applicable, resigns~~ ’s resignation hereunder, the provisions of this ~~Article, Section 2.17(d)~~ Article XI and Section ~~9.03~~ 12.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Person, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as ~~an Applicable~~ Administrative Agent. With respect to the Loans made or Letters of Credit issued or participated in by it hereunder, each 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 an Administrative Agent, and such Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Administrative Agent. Each Lender agrees (i) to reimburse the Administrative Agents, on demand, in the amount of its a pro rata share of any expenses incurred for the benefit of the Lenders by the Administrative Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (ii) to indemnify and hold harmless the Administrative Agents and any of their respective directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel fees, incurred by or asserted against any of them in its capacity as an Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by any of them under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Administrative Agent for any portion of such losses, claims, damages, liabilities or related expenses resulting from the gross negligence or wilful misconduct of such Administrative Agent or any of its directors, officers, employees or agents. For purposes hereof, a Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate Revolving Credit Exposure, outstanding Term Loans and unused Commitments at the time. Each Lender acknowledges that it has, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. 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 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 It is agreed that the ~~Administrative Agent undertakes~~ Joint Lead Arrangers and Joint Bookrunner shall, in their capacities as such, have no ~~obligation to update, correct~~ duties 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~~ responsibilities under this Agreement or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by each Applicable Administrative Agent or such other Person as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying LenderLoan Document. ~~The Syndication Agent, each Co-Documentation Agent and each~~ No Joint Lead Arranger ~~and~~ or Joint Bookrunner shall ~~not~~ have or be deemed to have any ~~right~~fiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, ~~power~~and will not rely, ~~obligation, liability, responsibility or duty under~~ on the Joint Lead Arrangers and Joint Bookrunners in deciding to enter into this Agreement or any other ~~than those applicable to all Lenders as such~~Loan Document or in taking or not taking any action hereunder or thereunder.

Appears in 1 contract

Samples: Credit Agreement (Zimmer Biomet Holdings, Inc.)

The Administrative Agents. In order to expedite the transactions contemplated by this Agreement, Chase is hereby appointed to act as the General Administrative Agent on behalf of the U.S. Lenders, The Chase Manhattan Bank, Tokyo Branch is hereby appointed to act as Japanese Administrative Agent on behalf of the Japanese Lenders, Chase Manhattan International Limited is hereby appointed to act as Euro Administrative Agent on behalf of the Euro Lenders and Chase is hereby appointed to act as Advance Agent on behalf of the Lenders. Each of the Lenders ~~and each of the Issuing Banks~~ hereby irrevocably ~~appoints the~~ authorizes each Administrative Agent ~~and~~(which term, ~~as applicable,~~ for purposes of this Article XIV shall be deemed to include the ~~Canadian Administrative~~ Advance Agent~~, as its agent and authorizes each of the Administrative Agents~~ ) to take such actions on ~~its behalf, including execution~~ behalf of ~~the other Loan Documents,~~ such Lender or holder and to exercise such powers as are specifically delegated to the ~~Applicable~~ Administrative Agents or an Administrative Agent individually, as the case may be, by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. Each ~~bank serving as the~~ Administrative Agent ~~or Canadian Administrative Agent hereunder shall have~~ is hereby expressly authorized by the ~~same rights and powers in its capacity as a Lender as~~ Lenders, without hereby limiting any other Lender and may exercise the same as though it were not the Administrative Agent or Canadian Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the Administrative Agent or Canadian Administrative Agent hereunder. Neither of the Administrative Agents shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoingimplied authority, (a) ~~neither~~ to receive on behalf of the ~~Administrative Agents shall be subject~~ Lenders all payments of principal of and interest on the Loans, payments in respect of the Letters of Credit and all other amounts due to ~~any fiduciary or other implied duties~~the Lenders hereunder, ~~regardless~~ and promptly to distribute to each Lender its proper share of ~~whether a Default has occurred and is continuing,~~ each payment so received; (b) ~~neither~~ to give notice on behalf of the Administrative Agents shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage each of the Lenders ~~as shall be necessary under~~ to the ~~circumstances as provided~~ Credit Parties of any Event of Default of which such Administrative Agent has actual knowledge acquired in ~~Section 9.02),~~ connection with its agency hereunder; and (c) ~~except~~ to distribute to each Lender copies of all notices, financial statements and other materials delivered by any Credit Party pursuant to this Agreement as ~~expressly set forth in the Loan Documents, neither of~~ received by such Administrative Agent. Neither the Administrative Agents ~~shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or~~ nor any of ~~its Subsidiaries that is communicated to~~ their respective directors, officers, employees or ~~obtained by such bank serving as the Administrative Agent of Canadian Administrative Agent or any of its Affiliates in any capacity. Neither of the Administrative Agents~~ agents shall be liable as such for any action taken or ~~not taken~~ omitted by ~~it with the consent~~ any of them except for its or ~~at the request of the Required Lenders (~~his or ~~such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its~~ her own gross negligence or willful misconduct~~. Neither of the Administrative Agents shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Person by the Borrower Representative~~ , or ~~a Lender, and such Person shall not~~ be responsible for ~~or have any duty to ascertain or inquire into (i)~~ any statement, warranty or representation ~~made in~~ herein or ~~in connection with any Loan Document, (ii)~~ the contents of any ~~certificate, report or other~~ document delivered ~~hereunder or~~ in connection ~~with~~ herewith, or be required to ascertain or to make any ~~Loan Document, (iii)~~ inquiry concerning the performance or observance by any Borrower of any of the ~~covenants~~terms, conditions, covenants or agreements ~~or other terms or conditions set forth~~ contained in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Applicable Administrative Agentthis Agreement. ~~Each of the~~ The Administrative Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Administrative Agents may deem and treat the Lender which makes any Loan or issues or participates in any Letter of Credit as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Administrative Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the 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. The Administrative Agents shall, in the absence of knowledge to the contrary, be entitled to rely ~~upon, and shall not incur~~ on any ~~liability for relying upon, any notice, request, certificate, consent, statement, instrument,~~ instrument or document ~~or other writing~~ believed by it in good faith to be genuine and correct and to have been signed or sent by the proper ~~Person~~Person or Persons. ~~Each of~~ Neither the Administrative Agents ~~also may rely upon~~ nor any ~~statement made~~ of their respective directors, officers, employees or agents shall have any responsibility 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. Each~~ Borrower on account of the failure of or delay in performance or breach by any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. The Administrative Agents may ~~consult with~~ execute any and all duties hereunder by or through their Affiliates, agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for the Borrowers), independent accountants and other experts~~ selected by ~~it,~~ them with due care with respect to all matters arising hereunder and shall not be liable for any action taken or ~~not taken~~ suffered in good faith by it them in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. ~~Each of~~ The Lenders hereby acknowledge that the Administrative Agents ~~may perform~~ shall be under no duty to take any ~~and all of its duties and exercise its rights and powers~~ discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed by such Person. Each of~~ them pursuant to the ~~Administrative Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory~~ provisions of this Agreement unless they shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each of the Administrative Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent or Canadian Administrative AgentRequired Lenders. Subject to the appointment and acceptance of a successor ~~Applicable~~ Administrative Agent as provided ~~in this paragraph~~below, ~~each of the~~ any Administrative ~~Agents~~ Agent may resign at any time by notifying the Lenders, the ~~Issuing Banks~~ other Administrative Agents and the ~~Borrower Representative~~Company. Upon any such ~~resignation~~resignation of an Administrative Agent, the Required Lenders shall have the ~~right, with the consent of the Borrowers (unless an Event of Default shall have occurred and be continuing),~~ right to appoint a ~~successor~~successor Administrative Agent acceptable to the Company. If no successor shall have been so appointed by the Required Lenders and ~~consented to by the Borrower (unless an Event of Default shall have occurred and be continuing) and~~ shall have accepted such appointment within 30 days after the retiring ~~agent~~ Administrative Agent gives notice of its resignation, then the retiring ~~agent~~ Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ which shall be a ~~commercial~~ bank having a combined capital and surplus of at least $500,000,000 (or an any Affiliate of ~~any~~ such ~~commercial~~ bank), (x) with, in the case of the U.S. Commitments, an office in New York, New York, (y) with, in the case of the Japanese Commitments, an office in Tokyo, Japan or (z) with the case of with, in the case of the Euro Commitments, an office in London. Upon the acceptance of ~~its~~ any appointment as an Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ hereunder by a ~~successor~~successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,,~~ and the retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrowers to a successor Administrative Agent or Canadian~~ After any Administrative Agent, as applicable, shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an Administrative Agent or Canadian Administrative Agent, as applicable, resigns 's resignation hereunder, the provisions of this ~~Article, Section 2.17(d)~~ Article XIV and Section ~~9.03~~ 15.5 shall continue in effect for ~~the~~ its benefit ~~of such retiring Person, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as ~~an Applicable~~ Administrative Agent. With respect to the Loans made by, or Letters of Credit issued by or participated in by, them hereunder, each 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 an Administrative Agent, and such Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Administrative Agent. Each Lender agrees (i) to reimburse the Administrative Agents, on demand, in the amount of its Applicable Percentage of any expenses incurred for the benefit of the Lenders by the Administrative Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (ii) to indemnify and hold harmless the Administrative Agents and any of their respective directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against either of them in its capacity as an Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by either of them under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Administrative Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Administrative Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. 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 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 each Applicable Administrative Agent or such other Person as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. The Syndication Agent, each Co-Documentation Agent and each Joint Lead Arranger and Joint Bookrunner shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.

Appears in 1 contract

Samples: Credit Facility Agreement (Zimmer Holdings Inc)

The Administrative Agents. In order to expedite the transactions contemplated by this Agreement, each of The Chase Manhattan Bank and Citibank, N.A. is hereby appointed to act as an Administrative Agent on behalf of the Lenders and Citibank is hereby appointed to act as Advance Agent on behalf of the Lenders. Each of the Lenders ~~and each of the Issuing Banks~~ hereby irrevocably ~~appoints the~~ authorizes each Administrative Agent ~~and~~(which term, ~~as applicable~~for purposes of this Article VII, shall be deemed to include the ~~Canadian Administrative~~ Advance Agent~~, as its agent and authorizes each of the Administrative Agents~~ ) to take such actions on ~~its behalf, including execution~~ behalf of ~~the other Loan Documents,~~ such Lender or holder and to exercise such powers as are specifically delegated to the ~~Applicable~~ Administrative Agents or an Administrative Agent individually, as the case may be, by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. ~~Each bank serving as~~ Citibank is hereby expressly authorized by the ~~Administrative Agent or Canadian Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as~~ Lenders, without hereby limiting any other Lender and may exercise the same as though it were not the Administrative Agent or Canadian Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the Administrative Agent or Canadian Administrative Agent hereunder. Neither of the Administrative Agents shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoingimplied authority, (a) ~~neither~~ to receive on behalf of the ~~Administrative Agents shall be subject~~ Lenders all payments of principal of and interest on the Loans and all other amounts due to ~~any fiduciary or other implied duties~~the Lenders hereunder, ~~regardless~~ and promptly to distribute to each Lender its proper share of ~~whether a Default has occurred and is continuing,~~ each payment so received; (b) ~~neither~~ to give notice on behalf of the Administrative Agents shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage each of the Lenders ~~as shall be necessary under~~ to the ~~circumstances as provided~~ Company or any Borrowing Subsidiary of any Event of Default of which Citibank has actual knowledge acquired in ~~Section 9.02),~~ connection with its agency hereunder; and (c) ~~except as expressly set forth in~~ to distribute to each Lender copies of all notices, financial statements and other materials delivered by the ~~Loan Documents, neither of the Administrative Agents shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party~~ Company or any ~~of its Subsidiaries that is communicated~~ Borrowing Subsidiary pursuant to ~~or obtained~~ this Agreement as received by ~~such bank serving as the~~ Citibank. Neither Administrative Agent ~~of Canadian Administrative Agent or~~ nor any of ~~its Affiliates in any capacity. Neither of the Administrative Agents~~ their respective directors, officers, employees or agents shall be liable as such for any action taken or ~~not taken~~ omitted by ~~it with the consent~~ any of them except for its or ~~at the request of the Required Lenders (~~his or ~~such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its~~ her own gross negligence or willful misconduct~~. Neither of the Administrative Agents shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Person by the Borrower Representative~~ , or ~~a Lender, and such Person shall not~~ be responsible for ~~or have any duty to ascertain or inquire into (i)~~ any statement, warranty or representation ~~made in~~ herein or ~~in connection with any Loan Document, (ii)~~ the contents of any ~~certificate, report or other~~ document delivered ~~hereunder or~~ in connection ~~with~~ E-1-47 herewith, or be required to ascertain or to make any ~~Loan Document, (iii)~~ inquiry concerning the performance or observance by the Company or any Borrowing Subsidiary of any of the ~~covenants~~terms, conditions, covenants or agreements ~~or other terms or conditions set forth~~ contained in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Applicable Administrative Agentthis Agreement. ~~Each of the~~ The Administrative Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Administrative Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Administrative Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the 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. The Administrative Agents shall, in the absence of knowledge to the contrary, be entitled to rely ~~upon, and shall not incur~~ on any ~~liability for relying upon, any notice, request, certificate, consent, statement, instrument,~~ instrument or document ~~or other writing~~ believed by it in good faith to be genuine and correct and to have been signed or sent by the proper ~~Person~~Person or Persons. ~~Each~~ Neither Administrative Agent nor any of their respective directors, officers, employees or agents shall have any responsibility to the Company or any Borrowing Subsidiary on account of the ~~Administrative Agents also may rely upon~~ failure of or delay in performance or breach by any ~~statement made~~ Lender of any of its obligations hereunder or 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. Each~~ Lender on account of the failure of or delay in performance or breach by any other Lender or the Company of any of their respective obligations hereunder or in connection herewith. The Administrative Agents may ~~consult with~~ execute any and all duties hereunder by or through their Affiliates, agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for the Borrowers), independent accountants and other experts~~ selected by ~~it,~~ them with respect to all matters arising hereunder and shall not be liable for any action taken or ~~not taken~~ suffered in good faith by it them in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. ~~Each of~~ The Lenders hereby acknowledge that the Administrative Agents ~~may perform~~ shall be under no duty to take any ~~and all of its duties and exercise its rights and powers~~ discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed by such Person. Each of~~ them pursuant to the ~~Administrative Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory~~ provisions of this Agreement unless they shall be requested in writing to do so by the ~~preceding paragraphs shall apply to any such sub-agent and to~~ Required Lenders. Subject, in the ~~Related Parties~~ case of ~~each~~ a resignation of ~~the~~ both Administrative ~~Agents and any such sub-agent~~Agents, 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 or Canadian Administrative Agent. Subject to the appointment and acceptance of a successor ~~Applicable~~ Administrative Agent as provided ~~in this paragraph~~below, ~~each of the~~ either Administrative ~~Agents~~ Agent may resign at any time by notifying the ~~Lenders, the Issuing Banks~~ Lenders and the ~~Borrower Representative~~Company. Upon any such ~~resignation~~resignation of both Administrative Agents, the Required Lenders shall have the ~~right, with the consent of the Borrowers (unless an Event of Default shall have occurred and be continuing),~~ right to appoint a ~~successor~~successor Administrative Agent acceptable to the Company. If no successor shall have been so appointed by the Required Lenders and ~~consented to by the Borrower (unless an Event of Default shall have occurred and be continuing) and~~ shall have accepted such appointment within 30 days after the retiring ~~agent gives~~ Administrative Agents give notice of ~~its~~ their resignation, then the retiring ~~agent~~ Administrative Agents may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ which shall be a ~~commercial~~ bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such ~~commercial~~ bank. Upon the acceptance of ~~its~~ any appointment as an Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ hereunder by a ~~successor~~successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agents and the retiring Administrative Agents shall be discharged from their duties and obligations hereunder. If only one of the Administrative Agents shall resign, the other Administrative Agent ~~or Canadian~~ shall become vested with all the rights, powers, privileges and duties of the retiring Administrative ~~Agent, as applicable,,~~ Agent and the retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrowers to a successor Administrative Agent or Canadian~~ After any Administrative Agent, as applicable, shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an Administrative Agent or Canadian Administrative Agent, as applicable, resigns 's resignation hereunder, the provisions of this ~~Article, Section 2.17(d)~~ Article and Section ~~9.03~~ 8.5 shall continue in effect for ~~the~~ its benefit ~~of such retiring Person, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as ~~an Applicable~~ Administrative Agent. With respect to the Loans made by them hereunder, each 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 an Administrative Agent, and such Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Administrative Agent. Each Lender agrees (i) to reimburse the Administrative Agents, on demand, in the amount of its Applicable Percentage of any expenses incurred for the benefit of the Lenders by the Administrative Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Company and (ii) to indemnify and hold harmless the Administrative Agents and any of their respective directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against either of them in its capacity as an Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by either of them under this Agreement to the extent the same shall not have been reimbursed by the Company; provided that no Lender shall be liable to any Administrative Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Administrative Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. 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 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 each Applicable Administrative Agent or such other Person as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. The Syndication Agent, each Co-Documentation Agent and each Joint Lead Arranger and Joint Bookrunner shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.

Appears in 1 contract

Samples: Credit Facility Agreement (Bristol Myers Squibb Co)

The Administrative Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as the General Administrative Agent on behalf of the U.S. Lenders, JPMorgan Chase Bank, N.A., Tokyo Branch is hereby appointed to act as Japanese Administrative Agent on behalf of the Japanese Lenders, X.X. Xxxxxx Europe Limited is hereby appointed to act as European Administrative Agent on behalf of the Multicurrency Lenders and JPMCB is hereby appointed to act as Advance Agent on behalf of the Lenders. Each of the Lenders ~~and each of the Issuing Banks~~ hereby irrevocably ~~appoints the~~ authorizes each Administrative Agent ~~and~~(which term, ~~as applicable,~~ for purposes of this Article XII shall be deemed to include the ~~Canadian Administrative~~ Advance Agent~~, as its agent and authorizes each of the Administrative Agents~~ ) to take such actions on ~~its behalf, including execution~~ behalf of ~~the other Loan Documents,~~ such Lender or holder and to exercise such powers as are specifically delegated to the ~~Applicable~~ Administrative Agents or an Administrative Agent individually, as the case may be, by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. Each ~~bank serving as the~~ Administrative Agent ~~or Canadian Administrative Agent hereunder shall have~~ is hereby expressly authorized by the ~~same rights and powers in its capacity as a Lender as~~ Lenders, without hereby limiting any other Lender and may exercise the same as though it were not the Administrative Agent or Canadian Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the Administrative Agent or Canadian Administrative Agent hereunder. Neither of the Administrative Agents shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoingimplied authority, (a) ~~neither~~ to receive on behalf of the ~~Administrative Agents shall be subject~~ Lenders all payments of principal of and interest on the Loans, payments in respect of the Letters of Credit and all other amounts due to ~~any fiduciary or other implied duties~~the Lenders hereunder, ~~regardless~~ and promptly to distribute to each Lender its proper share of ~~whether a Default has occurred and is continuing,~~ each payment so received; (b) ~~neither~~ to give notice on behalf of the Administrative Agents shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Applicable Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage each of the Lenders ~~as shall be necessary under~~ to the ~~circumstances as provided~~ Borrowers of any Event of Default of which such Administrative Agent has actual knowledge acquired in ~~Section 9.02),~~ connection with its agency hereunder; and (c) ~~except~~ to distribute to each Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as ~~expressly set forth in the Loan Documents, neither of~~ received by such Administrative Agent. Neither the Administrative Agents ~~shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or~~ nor any of ~~its Subsidiaries that is communicated to~~ their respective directors, officers, employees or ~~obtained by such bank serving as the Administrative Agent of Canadian Administrative Agent or any of its Affiliates in any capacity. Neither of the Administrative Agents~~ agents shall be liable as such for any action taken or ~~not taken~~ omitted by ~~it with the consent~~ any of them except for its or ~~at the request of the Required Lenders (~~his or ~~such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its~~ her own gross negligence or ~~willful~~ wilful misconduct~~. Neither of the Administrative Agents shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Person by the Borrower Representative~~ , or ~~a Lender, and such Person shall not~~ be responsible for ~~or have any duty to ascertain or inquire into (i)~~ any statement, warranty or representation ~~made in~~ herein or ~~in connection with any Loan Document, (ii)~~ the contents of any ~~certificate, report or other~~ document delivered ~~hereunder or~~ in connection ~~with~~ herewith, or be required to ascertain or to make any ~~Loan Document, (iii)~~ inquiry concerning the performance or observance by any Borrower of any of the ~~covenants~~terms, conditions, covenants or agreements ~~or other terms or conditions set forth~~ contained in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Applicable Administrative Agentthis Agreement. ~~Each of the~~ The Administrative Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Administrative Agents may deem and treat the Lender which makes any Loan or issues or participates in any Letter of Credit as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Administrative Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the 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. The Administrative Agents shall, in the absence of knowledge to the contrary, be entitled to rely ~~upon, and shall not incur~~ on any ~~liability for relying upon, any notice, request, certificate, consent, statement, instrument,~~ instrument or document ~~or other writing~~ believed by it in good faith to be genuine and correct and to have been signed or sent by the proper ~~Person~~Person or Persons. ~~Each of~~ Neither the Administrative Agents ~~also may rely upon~~ nor any ~~statement made~~ of their respective directors, officers, employees or agents shall have any responsibility 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. Each~~ Borrower on account of the failure of or delay in performance or breach by any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. The Administrative Agents may ~~consult with~~ execute any and all duties hereunder by or through their respective branches, Affiliates, agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for the Borrowers), independent accountants and other experts~~ selected by ~~it,~~ them with due care with respect to all matters arising hereunder and shall not be liable for any action taken or ~~not taken~~ suffered in good faith by it them in accordance with the advice of ~~any~~ such counsel. Without limiting the foregoing, ~~accountants~~ any Administrative Agent may, by notice to the Company and the applicable Borrower, designate any of its branches or ~~experts~~Affiliates as the Person to receive any or all notices (including Borrowing Requests and Interest Election Requests) to be delivered to such Administrative Agent pursuant to this Agreement. ~~Each of~~ The Lenders hereby acknowledge that the Administrative Agents ~~may perform~~ shall be under no duty to take any ~~and all of its duties and exercise its rights and powers~~ discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed by such Person. Each of~~ them pursuant to the ~~Administrative Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory~~ provisions of this Agreement unless they shall be requested in writing to do so by the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each of the Administrative Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent or Canadian Administrative AgentRequired Lenders. Subject to the appointment and acceptance of a successor ~~Applicable~~ Administrative Agent as provided ~~in this paragraph~~below, ~~each of the~~ any Administrative ~~Agents~~ Agent may resign at any time by notifying the Lenders, the ~~Issuing Banks~~ other Administrative Agents and the ~~Borrower Representative~~Company. Upon any such ~~resignation~~resignation of an Administrative Agent, the Required Lenders shall have the ~~right, with the consent of the Borrowers (unless an Event of Default shall have occurred and be continuing),~~ right to appoint a ~~successor~~successor Administrative Agent acceptable to the Company. If no successor shall have been so appointed by the Required Lenders and ~~consented to by the Borrower (unless an Event of Default shall have occurred and be continuing) and~~ shall have accepted such appointment within 30 days after the retiring ~~agent~~ Administrative Agent gives notice of its resignation, then the retiring ~~agent~~ Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ which shall be a ~~commercial~~ bank having a combined capital and surplus of at least $500,000,000 (or an any Affiliate of ~~any~~ such ~~commercial~~ bank), (i) with, in the case of the U.S. Commitments, an office in New York, New York, (ii) with, in the case of the Japanese Commitments, an office in Tokyo, Japan, or (iii) with, in the case of the Multicurrency Commitments, an office in London. Upon the acceptance of ~~its~~ any appointment as an Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ hereunder by a ~~successor~~successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,,~~ and the retiring Administrative Agent ~~or Canadian Administrative Agent, as applicable,~~ shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrowers to a successor Administrative Agent or Canadian~~ After any Administrative Agent, as applicable, shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an Administrative Agent or Canadian Administrative Agent, as applicable, resigns ’s resignation hereunder, the provisions of this ~~Article, Section 2.17(d)~~ Article XII and Section ~~9.03~~ 13.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Person, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as ~~an Applicable~~ Administrative Agent. With respect to the Loans made by, or Letters of Credit issued by or participated in by, them hereunder, each 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 an Administrative Agent, and such Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Administrative Agent. Each Lender agrees (i) to reimburse the Administrative Agents, on demand, in the amount of its Applicable Percentage of any expenses incurred for the benefit of the Lenders by the Administrative Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (ii) to indemnify and hold harmless the Administrative Agents and any of their respective directors, officers, employees or agents, on demand, in the amount of its Applicable Percentage, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against either of them in its capacity as an Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by either of them under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Administrative Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or wilful misconduct of such Administrative Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon ~~either of the~~ any Administrative ~~Agents~~ Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. 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 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 each Applicable Administrative Agent or such other Person as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. The Syndication Agent, each Co-Documentation Agent and each Joint Lead Arranger and Joint Bookrunner shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.

Appears in 1 contract

Samples: Credit Agreement (Zimmer Holdings Inc)

Common use of The Administrative Agents Clause in Contracts