The Agent. Each of the Lenders hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ▇▇▇▇▇ ▇, the Borrower or any of the Subsidiaries of Level 3 that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ▇▇▇▇▇ ▇, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for Level 3 or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor as provided in this paragraph, the Agent may resign at any time by notifying the Lenders and Level 3. Upon any such resignation, the Required Lenders shall have the right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a Lender or a bank with an office in New York, New York, or an Affiliate of such Lender or any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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.

Appears in 12 contracts

Sources: Credit Agreement (Level 3 Communications Inc), Credit Agreement (Level 3 Communications Inc), Eighth Amendment Agreement (Level 3 Communications Inc)

The Agent. Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the ~~Borrower~~ Loan Parties or any ~~Subsidiary~~ subsidiary of a Loan Party or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, ~~except~~ except, subject to the last paragraph of this Article VIII, discretionary rights and powers expressly contemplated by the Loan Documents that the 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇, the Borrower~~ any Loan Party or any of ~~the~~ its Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇,~~ the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~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 (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~each~~ the 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 Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, the Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Issuing Bank and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing,~~ with the consent ~~of Level 3~~ (~~which consent shall~~ not to be unreasonably withheld or delayed) of the Borrower, to appoint a successor; provided that (i) during the existence and continuation of an Event of Default, no consent of the Borrower shall be required and (ii) any successor that shall also be the named secured party under any Collateral Document shall also be subject to the approval requirements, if any, of such Collateral Document. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the ~~Lenders~~Lenders and the Issuing Bank, appoint a successor Agent which shall be a ~~Lender or a~~ commercial bank ~~with an office in New York, New York,~~ or an Affiliate of ~~such Lender or~~ any such ~~bank~~commercial bank reasonably acceptable to the Borrower. If no successor Agent has been appointed pursuant to the immediately preceding sentence by the 30th day after the date such notice of resignation was given by such Agent, such Agent’s resignation shall become effective and the Required Lenders shall thereafter perform all the duties of such Agent hereunder and/or under any other Loan Document until such time, if any, as the Required Lenders appoint, with the consent of the Borrower (not to be unreasonably withheld or delayed) (so long as no Event of Default exists), a successor administrative agent and/or collateral agent, as the case may be. Any such resignation by such Agent hereunder shall also constitute, to the extent applicable, its resignation as an Issuing Bank and the Swingline Lender, in which case such resigning Agent (x) shall not be required to issue any further Letters of Credit or make any additional Swingline Loans hereunder and (y) shall maintain all of its rights as Issuing Bank or Swingline Lender, as the case may be, with respect to any Letters of Credit issued by it, or Swingline Loans made by it, prior to the date of such resignation. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrower and such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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 (a) acknowledges that it has received a copy of each Collateral Documents, (b) without limiting the foregoing, agrees that it will be bound by and will take no actions contrary to the provisions of any Collateral Documents and (c) acknowledges that the Agent will, and hereby authorizes the Agent to, enter into (and be a party to) the Collateral Documents and any intercreditor agreements on behalf of itself, such Lender and the holders of any future Specified Secured Indebtedness. The Lenders further acknowledge that, pursuant to the Collateral Documents, the Agent will have the sole right to proceed against the Collateral. In the event of a foreclosure by the Agent on any of the Collateral pursuant to a public or private sale or other disposition, any Secured Party may be the purchaser of any or all of such Collateral at any such sale or other disposition, and the Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by such Secured Party. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the foregoing provisions. The provisions of this paragraph are for the sole benefit of the Lenders and shall not afford any right to, or constitute a defense available to, any Loan Party. The Joint Lead Arrangers and joint bookrunners shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Agent and each Joint Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true: (i) such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the Commitments, (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such ▇▇▇▇▇▇’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, (iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or (iv) such other representation, warranty and covenant as may be agreed in writing between the Agent, in its sole discretion, and such Lender. In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Agent and each Joint Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that: (i) none of the Agent or any Joint Lead Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Agent under this Agreement, any Loan Document or any documents related to hereto or thereto), (ii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50.0 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E), (iii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the Obligations), (iv) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, the Letters of Credit, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and (v) no fee or other compensation is being paid directly to the Agent or any Joint Lead Arranger or any their respective Affiliates for investment advice (as opposed to other services) in connection with the Loans, the Letters of Credit, the Commitments or this Agreement. The Agent and each Joint Lead Arranger hereby informs the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, Agent or collateral agent fees,

Appears in 4 contracts

Sources: Incremental Revolving Credit Assumption Agreement (TransDigm Group INC), Incremental Term Loan Assumption Agreement (TransDigm Group INC), Loan Modification Agreement (TransDigm Group INC)

The Agent. Each of the Lenders and each Issuing Bank hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms of hereof and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Agent hereunder ~~shall also be a Lender, it~~ shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~Level 3,~~ the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Agent ~~hereunder~~hereunder and without any duty to account therefor to the Lenders or Issuing Bank. The Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Agent shall believe in good faith to be necessary, under the circumstances as provided in Section ~~9.02~~9.08)~~, and~~ ; provided that the Agent shall not ~~have any duty~~ be required to take any action that, in its opinion, could expose the Agent to liability or ~~exercise~~ be contrary to any ~~powers that would result in the incurrence by it of costs~~ Loan Document or ~~expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders~~applicable law, and (c) except as expressly set forth ~~in the Loan Documents~~herein, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇,~~ the Borrower or any of ~~the~~ its Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Agent shall believe in good faith to be necessary, under the circumstances as provided in Section ~~9.02~~9.08) or in the absence of its own gross negligence or willful misconduct, as determined by a court of competent jurisdiction by a final and non-appealable judgment. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇~~the Borrower, a Lender or the ~~Borrower or a Lender~~Issuing Bank, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in herein or therein or the occurrence of any ~~Loan Document~~Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Agent. As Notwithstanding anything herein to ~~any matters not expressly provided for by this Agreement and~~ the ~~other Loan Documents (including enforcement or collection)~~contrary, the ~~Administrative Agent and the Collateral~~ Agent shall not ~~be required to exercise~~ have any ~~discretion or take~~ liability arising from any ~~action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions~~ confirmation of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent Credit Exposure or the ~~Collateral Agent~~ component amounts thereof. Nothing in ~~good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to~~ this Agreement or ~~applicable law~~any other Loan Document shall require the Agent or any of its Related Parties to carry out any “know your customer” or other checks in relation to any Person on behalf of any Lender and each Lender confirms to the Agent that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Agent or any of its Related Parties. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent or otherwise authenticated by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be have been made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers hereunder or under any other Loan Documents by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~each~~ the Agent and any such sub-agent, and shall apply to their respective activities in connection with ~~the~~ any syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, the Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Issuing Banks and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing,~~ with the consent of ~~Level 3~~ the Borrower (~~which~~ such consent ~~shall~~ not to be unreasonably withheld or delayed) ), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the ~~Lenders~~Lenders and the Issuing Banks, appoint a successor Agent which shall be ~~a Lender or~~ a bank with an office in New York, New York, or an Affiliate of ~~such Lender or~~ any such bank. If the Person serving as Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Borrower and such Person remove such Person as Agent and, with the consent of the Borrower (such consent not to be unreasonably withheld or delayed), appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring or removed Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrower and such successor. After the Agent’s resignation or removal hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 Agent. Each Lender ~~acknowledges~~ further represents that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this ~~Agreement~~Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender ~~also acknowledges that it will~~shall, independently and without reliance upon the Agent or any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any ~~other Loan Document or~~ related agreement or any document furnished hereunder or ~~thereunder~~thereunder and in deciding whether or to the extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder. The provisions of this Article are solely for the benefit of the Agent, the Lenders and the Issuing Banks and the Borrower shall not have any rights as a third party beneficiary of any such provisions.

Appears in 4 contracts

Sources: Borrower Assignment and Assumption Agreement (BrightSphere Investment Group Inc.), Revolving Credit Agreement (BrightSphere Investment Group Inc.), Revolving Credit Agreement (BrightSphere Investment Group Inc.)

The Agent. Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3~~Holdings, the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇~~the Parent, Holdings, the Borrower or any of ~~the~~ its Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any ~~capacity~~capacity (other than as Agent). The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇~~Holdings, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor to the Agent as provided in this paragraph, the Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Issuing Bank and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing,~~ with the consent of ~~Level 3~~ the Borrower (~~which~~ such consent ~~shall~~ not to be unreasonably withheld or ~~delayed~~delayed and such consent not to be required if an Event of Default under clause (a), (b), (h) or (i) of Article VII has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the ~~Lenders~~Lenders and the Issuing Bank, appoint a successor Agent which shall be ~~a Lender or~~ a bank with an office in New York, New York, or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of its appointment as Agent and Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrower and such successor. After the Agent’s 's resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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.

Appears in 4 contracts

Sources: Credit Agreement (Dex Media Inc), Credit Agreement (Dex Media East LLC), Credit Agreement (Dex Media Inc)

Appears in 4 contracts

Sources: Credit Agreement (Donnelley R H Inc), Credit Agreement (Dex Media, Inc./New), Credit Agreement (R H Donnelley Corp)

The Agent. (a) Each ~~of the Lenders~~ Secured Party hereby ~~irrevocably~~ appoints and authorizes the Agent as its agent hereunder and hereby further authorizes the Agent to appoint additional agents to act on its behalf and for the benefit of each Secured Party. Each Secured Party further authorizes the Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are delegated to the Agent by the terms ~~of the Loan Documents~~hereof and thereof, together with such ~~actions and~~ powers as are reasonably incidental thereto. In With respect to other actions which are incidental to the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money actions specifically delegated to ~~and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not~~ the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ▇▇▇▇▇ ▇, the Borrower or any of the Subsidiaries of Level 3 that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ▇▇▇▇▇ ▇, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to ~~exercise any discretion or~~ take any ~~action~~such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~instructions~~ direction of the ~~Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however,~~ Note Purchaser; provided that the ~~Administrative Agent and the Collateral~~ Agent shall not be required to take any action ~~that~~ hereunder if the taking of such action, in the reasonable determination of the Agent, shall be in violation of any Applicable Law or contrary to any provision of this Agreement or shall expose the Agent to liability hereunder or otherwise. In the event the Agent requests the consent of the Note Purchaser pursuant to the foregoing provisions and the Agent does not receive a consent (either positive or negative) from such Person within ten Business Days of such Person’s receipt of such request, then such Note Purchaser shall be deemed to have declined to consent to the relevant action. (b) The Borrower irrevocably authorizes the Agent and appoints the Agent as its attorney-in-fact to act on behalf of the Borrower (i) to file financing statements necessary or desirable in the ~~Administrative Agent or~~ Agent’s sole discretion to perfect and to maintain the perfection and priority of the interest of the Secured Parties in the Collateral ~~Agent in good faith believes exposes it~~ Portfolio and (ii) to ~~personal liability unless it receives an indemnification satisfactory to it from the Lenders~~ file a carbon, photographic or other reproduction of this Agreement or any financing statement with respect to the Collateral Portfolio as a financing statement in such ~~action~~ offices as the Agent in its sole discretion deems necessary or desirable to perfect and to maintain the perfection and priority of the interests of the Secured Parties in the Collateral Portfolio. This appointment is coupled with an interest and is irrevocable. (iic) is If the Borrower or the Servicer, as applicable, fails to perform any of its agreements or obligations under Section 5.01(t), Section 5.02(r) or Section 5.03(e), the Agent may (but shall not be required to) itself perform, or cause performance of, such agreement or obligation, and the expenses of the Agent incurred in connection therewith shall be payable by the Borrower or the Servicer (on behalf of the Borrower), as applicable, upon the Agent’s demand therefor. (d) Notwithstanding any provision to the contrary to elsewhere in this Agreement, the Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with the Note Purchaser, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or ~~applicable law. The~~ otherwise exist against the Agent. (e) Neither the Agent nor any of its directors, officers, agents or employees shall be ~~entitled~~ liable for any action taken or omitted to ~~rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed~~ be taken by it ~~to be genuine and to have been signed~~ or ~~sent by~~ them as Agent under or in connection with this Agreement or any of the ~~proper Person~~other Transaction Documents, except for its or their own gross negligence or willful misconduct. ~~The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by~~ Without limiting the ~~proper Person~~foregoing, ~~and shall not incur any liability for relying thereon. The Agent~~ the Agent: (i) may consult with legal counsel (~~who may be~~ including counsel for ~~Level 3~~ the Borrower or the ~~Borrower~~Transferor), independent public accountants and other experts selected by ~~it,~~ it and shall not be liable for any action taken or ~~not~~ omitted to be taken in good faith by it in accordance with the advice of ~~any~~ such counsel, accountants or experts~~. The Agent may perform any and all its duties and exercise its rights and powers by~~ ; (ii) makes no warranty or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, representation and shall ~~apply to their respective activities~~ not be responsible for any statements, warranties or representations made in or in connection with this Agreement; (iii) shall not have any duty to ascertain or to inquire as to the ~~syndication~~ performance or observance of any of the ~~credit facilities provided for herein as well as activities as Agent. Subject to~~ terms, covenants or conditions of this Agreement or any of the ~~appointment and acceptance~~ other Transaction Documents on the part of ~~a successor as provided in this paragraph~~the Borrower, the ~~Agent may resign at any time by notifying~~ Transferor, or the ~~Lenders~~ Servicer or to inspect the property (including the books and ~~Level 3. Upon any such resignation~~records) of the Borrower, the ~~Required Lenders shall have~~ Transferor, or the ~~right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3~~ Servicer; (~~which consent~~ iv) shall not be ~~unreasonably withheld~~ responsible for the due execution, legality, validity, enforceability, genuineness, sufficiency or ~~delayed) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice~~ value of ~~its resignation~~this Agreement, ~~then the retiring Agent may, on behalf~~ any of the ~~Lenders, appoint a successor Agent which shall be a Lender or a bank with an office in New York, New York, or an Affiliate of such Lender~~ other Transaction Documents or any ~~such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor~~ other instrument or document furnished pursuant hereto or thereto; and (v) shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties incur no liability under or in respect of this Agreement or any ~~actions taken~~ of the other Transaction Documents by acting upon any notice (including notice by telephone), consent, certificate or ~~omitted~~ other instrument or writing (which may be by facsimile) believed by it to be ~~taken~~ genuine and signed or sent by ~~any of them while it was acting as Agent.~~ the proper party or parties. (f) Each ~~Lender~~ Secured Party acknowledges that it has, independently and without reliance upon the ~~Agent~~ Agent, or any ~~other Lender~~ of the Agent’s Affiliates, and based on upon such documents and information as it has deemed appropriate, made its own ~~credit analysis~~ evaluation and decision to enter into this ~~Agreement~~Agreement and the other Transaction Documents to which it is a party. Each ~~Lender~~ Secured Party also acknowledges that it will, independently and without reliance upon the ~~Agent~~ Agent, or any ~~other Lender~~ of the Agent’s Affiliates, and based on such documents and information as it shall ~~from time to time~~ deem ~~appropriate~~appropriate at the time, continue to make its own decisions in taking or not taking action under this Agreement and the other Transaction Documents to which it is a party. (g) The Note Purchaser agrees to indemnify the Agent (to the extent not reimbursed by the Borrower or ~~based upon~~ the Servicer) from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Agent in any way relating to or arising out of this ~~Agreement, any other Loan Document or related agreement~~ Agreement or any ~~document furnished~~ of the other Transaction Documents, or any action taken or omitted by the Agent hereunder or thereunder; provided that the Note Purchaser shall not be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Agent’s gross negligence or willful misconduct. Without limitation of the foregoing, the Note Purchaser agrees to reimburse the Agent promptly upon demand for any out-of-pocket expenses (including counsel fees) incurred by the Agent in connection with the administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement and the other Transaction Documents, to the extent that such expenses are incurred in the interests of or otherwise in respect of the Note Purchaser hereunder and/or thereunder and to the extent that the Agent is not reimbursed for such expenses by the Borrower or the Servicer.

Appears in 3 contracts

Sources: Sale and Servicing Agreement (Ares Capital Corp), Sale and Servicing Agreement (Ares Capital Corp), Sale and Servicing Agreement (Ares Capital Corp)

The Agent. Each of the Lenders hereby irrevocably appoints the Agent (together with its Affiliates and branches) as its agent and authorizes the Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the ~~Borrower~~ Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders and Issuing Banks (including in its capacities as a holder of Secured Hedging Obligations and Secured Cash Management, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Agent for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Agent, shall be entitled to the benefits of all provisions of this Article VIII and Article IX (as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇, the Borrower~~ any Loan Party or any of ~~the~~ its Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any capacity. The 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~~misconduct as determined by a court of competent jurisdiction by a final and nonappealable judgment. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇,~~ the U.S. Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~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 value or sufficiency of the Collateral or the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the ~~Borrower~~Loan Parties), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~each~~ the 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 Agent. Each of the Lenders, the Issuing Banks and the Loan Parties agree, that the Agent may, but shall not be obligated to, make the Approved Electronic Communications available to the Lenders and the Issuing Banks by posting such Approved Electronic Communications on IntraLinks™ or a substantially similar electronic platform chosen by the Agent to be its electronic transmission system (the “Approved Electronic Platform”). Although the Approved Electronic Platform and its primary web portal are secured with generally-applicable security procedures and policies implemented or modified by the Agent from time to time (including, as of the Closing Date, a dual firewall and a User ID/Password Authorization System) and the Approved Electronic Platform is secured through a single-user-per-deal authorization method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders and the Issuing Banks and the Loan Parties acknowledge and agree that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution. In consideration for the convenience and other benefits afforded by such distribution and for the other consideration provided hereunder, the receipt and sufficiency of which is hereby acknowledged, each of the Lenders, the Loan Parties and the Issuing Banks hereby approve distribution of the Approved Electronic Communications through the Approved Electronic Platform and understands and assumes the risks of such distribution. The Approved Electronic Communications and the Approved Electronic Platform are provided “as is” and “as available.” None of the Agent or any of its Affiliates or any of their respective officers, directors, employees, agents, advisors or representatives (the “Agent Affiliates”) warrant the accuracy, adequacy or completeness of the Approved Electronic Communications and the Approved Electronic Platform and each expressly disclaims liability for errors or omissions in the Approved Electronic Communications and the Approved Electronic Platform. No warranty of any kind, express, implied or statutory (including, without limitation, any warranty of merchantability, fitness for a particular purpose, noninfringement of third party rights or freedom from viruses or other code defects) is made by the Agent Affiliates in connection with the approved electronic communications or the approved electronic platform. Each of the Lenders, the Issuing Banks and the Loan Parties agrees that the Agent may, but (except as may be required by applicable law) shall not be obligated to, store the Approved Electronic Communications on the Approved Electronic Platform in accordance with the Agent’s generally-applicable document retention procedures and policies. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, the Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Issuing Banks and ~~Level 3~~the U.S. Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing,~~ with the consent ~~of Level 3~~ (~~which consent shall~~ not to be unreasonably withheld or delayed) of the U.S. Borrower, to appoint a successor; provided that, during the existence and continuation of an Event of Default, no consent of the U.S. Borrower shall be required. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the ~~Lenders,~~ Lenders and the Issuing Banks appoint a successor Agent which shall be a ~~Lender or a~~ commercial bank ~~with an office in New York, New York,~~ or an Affiliate of ~~such Lender or~~ any such ~~bank~~commercial bank reasonably acceptable to the U.S. Borrower. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the ~~Borrower~~ Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrowers and such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Agent, its ~~sub-agents~~ sub‑agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent, any Joint Lead Arranger, any Co-Documentation Agent or any other Lender or a Related Party 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 also acknowledges that it will, independently and without reliance upon the Agent, any Joint Lead Arranger, any Co-Documentation Agent or any other Lender or a Related Party 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 related agreement or any document furnished hereunder or thereunder. The co-arrangers, joint bookrunners, co-syndication agents and the co-documentation agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Each Lender authorizes and directs the Agent to, upon the request of the U.S. Borrower, enter into any intercreditor agreement with any agent under any Receivables Facility of the U.S. Borrower or any of its Restricted Subsidiaries and each Lender agrees to be bound by the terms thereof that are applicable to it thereunder. Any supplement to this agreement effecting any Subsidiary of the U.S. Borrower becoming an Additional Foreign Borrower may include “parallel debt” provisions or similar customary provisions for credit facilities of borrowers organized in the jurisdiction of organization of such Additional Foreign Borrower.

Appears in 3 contracts

Sources: Credit Agreement (Aramark), Credit Agreement (Aramark), Credit Agreement (Aramark)

The Agent. Each of the Lenders and the Issuing Bank hereby irrevocably appoints ~~the~~ JPMorgan Chase Bank, N.A. as Administrative Agent ~~as its agent~~ and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Administrative Agent hereunder ~~shall also be a Lender, it~~ shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇,~~ the Borrower or any of ~~the~~ its Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~▇▇▇▇▇ ▇,~~ the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. ~~As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the~~ The Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Issuing Bank and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with~~in consultation with the Borrower, ~~so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders~~Lenders and the Issuing Bank, appoint a successor Administrative Agent which shall be ~~a Lender or~~ a bank with an office in New York, New York, or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary, each Lender acknowledges that the Lien and security interest granted to the Administrative Agent pursuant to the Security Documents and the exercise of any right or remedy by the Administrative Agent thereunder are subject to the provisions of the Intercreditor Agreements. To the extent required by any applicable law, the Administrative Agent shall withhold from any payment to any Lender an amount equal to any applicable withholding Tax. If the IRS or any Governmental Authority asserts a claim that the Administrative Agent did not properly withhold Tax from any amount paid to or for the account of any Lender for any reason (including because the appropriate form was not delivered or was not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstances that rendered the exemption from, or reduction of, withholding Tax ineffective), such Lender shall indemnify and hold harmless the Administrative Agent (to the extent that the Administrative Agent has not already been reimbursed by the Company and without limiting or expanding the obligation of the Company to do so) for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including any penalties, additions to Tax or interest thereon, together with all expenses incurred, including legal expenses and any out-of-pocket expenses, whether or not such Tax was correctly or legally imposed or asserted by the relevant Government Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this Article VIII. The agreements in this Article VIII shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Loans and the repayment, satisfaction or discharge of all obligations under this Agreement. Unless required by applicable laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender any refund of Taxes withheld or deducted from funds paid for the account of such Lender.

Appears in 3 contracts

Sources: Credit Agreement (American Media Inc), Revolving Credit Agreement (Ami Celebrity Publications, LLC), Revolving Credit Agreement (Ami Celebrity Publications, LLC)

The Agent. In order to expedite the transactions contemplated by this Agreement, JPMorgan Chase Bank, N.A. is hereby appointed to act as Agent on behalf of the Banks. Each of the ~~Lenders~~ Banks, and each transferee of any Bank, hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such actions on ~~its~~ behalf of such Bank or transferee and to exercise such powers as are specifically delegated to the Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent ~~shall not have~~ is hereby expressly authorized by the Banks, without hereby limiting any ~~duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing~~implied authority, (a) to receive on behalf of the ~~Agent shall not be subject~~ Banks all payments of principal of and interest on the Loans and all other amounts due to ~~any fiduciary or other implied duties~~the Banks hereunder, ~~regardless~~ and promptly to distribute to each Bank its proper share of ~~whether a Default has occurred and is continuing,~~ each payment so received; (b) to give notice on behalf of each of the Banks to the Borrower of any Event of Default specified in this Agreement of which the 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 Agent is required to exercise has actual knowledge acquired in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, connection with its agency hereunder; and (c) ~~except~~ to distribute to each Bank copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as ~~expressly set forth in~~ received by the ~~Loan Documents,~~ Agent. Neither the Agent nor any of its directors, officers, employees or agents shall ~~not have any duty to disclose, and shall not~~ be liable as such for any action taken or omitted by any of them except for its or his own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the ~~failure~~ contents of any document delivered in connection herewith, or be required to ~~disclose,~~ ascertain or to make any ~~information relating to ▇▇▇▇▇ ▇,~~ inquiry concerning the performance or observance by the Borrower or of any of the ~~Subsidiaries of Level 3 that is communicated to~~ terms, conditions, covenants or ~~obtained by the institution serving as Agent or any of its Affiliates~~ agreements contained in any ~~capacity~~Loan Document. The Agent shall not be ~~liable~~ responsible to the Banks for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Banks and, except as otherwise specifically provided herein, such instructions and 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~~ inaction pursuant thereto shall be ~~necessary under~~ binding on all the ~~circumstances as provided in Section 9.02) or~~ Banks. The Agent shall, in the absence of ~~its own gross negligence or willful misconduct. The Agent shall be deemed not to have~~ knowledge ~~of any Default unless and until written notice thereof is given~~ to the ~~Agent by ▇▇▇▇▇ ▇~~contrary, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall 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. ~~The~~ Neither the Agent ~~also may rely upon~~ nor any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ the Borrower on account of the failure of or delay in performance or breach by ~~telephone and believed~~ any Bank of any of its obligations hereunder or to any Bank on account of the failure of or delay in performance or breach by ~~it to be made by~~ any other Bank or the ~~proper Person, and shall not incur~~ Borrower of any ~~liability for relying thereon~~of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. The Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for Level 3 or the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it 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 in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. The Banks hereby acknowledge that the Agent ~~may perform~~ shall be under no duty to take any ~~and all its duties and exercise its rights and powers~~ discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as AgentRequired Banks. Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the ~~Lenders~~ Banks and ~~Level 3~~the Borrower. Upon any such resignation, the Required ~~Lenders~~ Banks shall have the ~~right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ right to appoint a successor. If no successor shall have been so appointed by the Required ~~Lenders~~ Banks 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~~Banks, appoint a successor Agent ~~which shall be~~ having a ~~Lender or a bank with an office in New York, New York,~~ combined capital and surplus of at least $500,000,000 or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of ~~its~~ any appointment as Agent 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 ~~Agent,~~ Agent and the retiring Agent shall be discharged from its duties and obligations hereunder~~. The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor~~. After the Agent’s resignation hereunder, the provisions of this Article and Section ~~9.03~~ 10.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Agent. With respect to the Loans made by it hereunder, the Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Bank and may exercise the same as though it were not the Agent, and the Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Agent. Each ~~Lender~~ Bank agrees (i) to reimburse the Agent, on demand, (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), in the amount of its pro rata share (based on its Commitment hereunder) of any expenses incurred for the benefit of the Banks by the Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Banks, which shall not have been reimbursed by the Borrower and (ii) to indemnify and hold harmless the Agent and any of its 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 (irrespective of whether the Agent is a party to the action for which indemnification hereunder is sought) of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as the Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or any action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Borrower; provided that no Bank shall be liable to the 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 the Agent or any of its directors, officers, employees or agents. Each Bank acknowledges that it has, independently and without reliance upon the Agent or any other ~~Lender~~ Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each ~~Lender~~ Bank also acknowledges that it will, independently and without reliance upon the Agent or any other ~~Lender~~ Bank and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any other Loan ~~Document or~~ Document, any related agreement or any document furnished hereunder or thereunder. Anything herein to the contrary notwithstanding, none of the Joint Bookrunners, Joint Lead Arrangers, Syndication Agent or Documentation Agents listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Agent or a Bank hereunder.

Appears in 3 contracts

Sources: Five Year Competitive Advance and Revolving Credit Facility Agreement (Scripps Networks Interactive, Inc.), Five Year Competitive Advance and Revolving Credit Facility Agreement (Scripps Networks Interactive, Inc.), Credit Facility Agreement (Scripps Networks Interactive, Inc.)

The Agent. Each of the Lenders hereby irrevocably appoints the Agent (together with its Affiliates and branches) as its agent and authorizes the Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the ~~Borrower~~ Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders and Issuing Banks (including in its capacities as a holder of Secured Hedging Obligations and Secured Cash Management, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Agent for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Agent, shall be entitled to the benefits of all provisions of this Article VIII and Article IX (as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇, the Borrower~~ any Loan Party or any of ~~the~~ its Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any capacity. The 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~~misconduct as determined by a court of competent jurisdiction by a final and nonappealable judgment. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇,~~ the U.S. Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~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 value or sufficiency of the Collateral or the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the ~~Borrower~~Loan Parties), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~each~~ the 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 Agent. Each of the Lenders, the Issuing Banks and the Loan Parties agree, that the Agent may, but shall not be obligated to, make the Approved Electronic Communications available to the Lenders and the Issuing Banks by posting such Approved Electronic Communications on IntraLinks™ or a substantially similar electronic platform chosen by the Agent to be its electronic transmission system (the “Approved Electronic Platform”). Although the Approved Electronic Platform and its primary web portal are secured with generally-applicable security procedures and policies implemented or modified by the Agent from time to time (including, as of the Closing Date, a dual firewall and a User ID/Password Authorization System) and the Approved Electronic Platform is secured through a single-user-per-deal authorization method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders and the Issuing Banks and the Loan Parties acknowledge and agree that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution. In consideration for the convenience and other benefits afforded by such distribution and for the other consideration provided hereunder, the receipt and sufficiency of which is hereby acknowledged, each of the Lenders, the Loan Parties and the Issuing Banks hereby approve distribution of the Approved Electronic Communications through the Approved Electronic Platform and understands and assumes the risks of such distribution. The Approved Electronic Communications and the Approved Electronic Platform are provided “as is” and “as available.” None of the Agent or any of its Affiliates or any of their respective officers, directors, employees, agents, advisors or representatives (the “Agent Affiliates”) warrant the accuracy, adequacy or completeness of the Approved Electronic Communications and the Approved Electronic Platform and each expressly disclaims liability for errors or omissions in the Approved Electronic Communications and the Approved Electronic Platform. No warranty of any kind, express, implied or statutory (including, without limitation, any warranty of merchantability, fitness for a particular purpose, noninfringement of third party rights or freedom from viruses or other code defects) is made by the Agent Affiliates in connection with the approved electronic communications or the approved electronic platform. Each of the Lenders, the Issuing Banks and the Loan Parties agrees that the Agent may, but (except as may be required by applicable law) shall not be obligated to, store the Approved Electronic Communications on the Approved Electronic Platform in accordance with the Agent’s generally-applicable document retention procedures and policies. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, the Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Issuing Banks and ~~Level 3~~the U.S. Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing,~~ with the consent ~~of Level 3~~ (~~which consent shall~~ not to be unreasonably withheld or delayed) of the U.S. Borrower, to appoint a successor; provided that, during the existence and continuation of an Event of Default, no consent of the U.S. Borrower shall be required. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the ~~Lenders,~~ Lenders and the Issuing Banks appoint a successor Agent which shall be a ~~Lender or a~~ commercial bank ~~with an office in New York, New York,~~ or an Affiliate of ~~such Lender or~~ any such ~~bank~~commercial bank reasonably acceptable to the U.S. Borrower. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the ~~Borrower~~ Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrowers and such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent, any Joint Lead Arranger, any Co-Documentation Agent or any other Lender or a Related Party 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 also acknowledges that it will, independently and without reliance upon the Agent, any Joint Lead Arranger, any Co-Documentation Agent or any other Lender or a Related Party 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 related agreement or any document furnished hereunder or thereunder. The co-arrangers, joint bookrunners, co-syndication agents and the co-documentation agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Each Lender authorizes and directs the Agent to, upon the request of the U.S. Borrower, enter into any intercreditor agreement with any agent under any Receivables Facility of the U.S. Borrower or any of its Restricted Subsidiaries and each Lender agrees to be bound by the terms thereof that are applicable to it thereunder. Any supplement to this agreement effecting any Subsidiary of the U.S. Borrower becoming an Additional Foreign Borrower may include “parallel debt” provisions or similar customary provisions for credit facilities of borrowers organized in the jurisdiction of organization of such Additional Foreign Borrower.

Appears in 3 contracts

Sources: Incremental Amendment (Aramark), Incremental Amendment (Aramark), Credit Agreement (Aramark)

The Agent. Each of the Lenders hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the ~~Borrower~~ Loan Parties or any Subsidiary or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~8.01), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth ~~in the Loan Documents~~herein, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇,~~ the ~~Borrower~~ Loan Parties or any ~~of the~~ if their Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~8.01) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇, the Borrower~~ a Loan Party or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document~~this Agreement, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV III or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for Level 3 or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor as provided in this paragraph, the Agent may resign at any time by notifying the Lenders and Level 3. Upon any such resignation, the Required Lenders shall have the right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a Lender or a bank with an office in New York, New York, or an Affiliate of such Lender or any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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.

Appears in 3 contracts

Sources: Credit Agreement (Pepsi Bottling Group Inc), Credit Agreement (Pepsi Bottling Group Inc), Credit Agreement (Bottling Group LLC)

The Agent. Each of the Lenders hereby irrevocably appoints the entity named as Agent in the heading of this Agreement and its successors to serve as ~~its~~ administrative agent and collateral agent under the Loan Documents, and authorizes the Agent to take such actions ~~on its behalf~~ and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The Person serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ Person and its Affiliates may accept deposits from, lend money to to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~Level 3,~~ the Borrower or any Subsidiary or other Affiliate thereof (including Parent) as if it such Person were not the Agent ~~hereunder~~hereunder and without any duty to account therefor to the Lenders. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (a) the Agent shall not 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 Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties), (b) the Agent shall not have any duty to take any discretionary action or to exercise any discretionary ~~powers~~power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Agent shall believe in good faith to be necessary, under the circumstances as provided in ~~Section 9.02~~the Loan Documents), ~~and~~ provided that the Agent shall not ~~have any duty~~ be required to take any action that, in its opinion, could expose the Agent to liability or ~~exercise~~ be contrary to any ~~powers that would result in the incurrence by it of costs~~ Loan Document or ~~expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders~~applicable law, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇~~the Borrower, any Subsidiary or any other Affiliate of the Borrower ~~or any of the Subsidiaries of Level 3~~ that is communicated to or obtained by the ~~institution~~ Person serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Agent shall believe in good faith to be necessary, under the circumstances as provided in ~~Section 9.02~~the Loan Documents) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice ~~thereof~~ describing such Default is given to the Agent by ~~▇▇▇▇▇ ▇,~~ the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan ~~Document~~Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV III or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As Notwithstanding anything herein to ~~any matters not expressly provided for by this Agreement and~~ the ~~other Loan Documents (including enforcement or collection)~~contrary, the ~~Administrative Agent and the Collateral~~ Agent shall not be ~~required to exercise~~ liable for, or be responsible for any ~~discretion~~ loss, cost or ~~take~~ expense suffered by the Borrower or any ~~action~~Lender as a result of, ~~but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions~~ any such determination of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent Exposure or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable lawcomponent amounts thereof. The Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ signed, sent or ~~sent~~ otherwise authenticated by the proper Person. The Agent also ~~may rely~~ shall be entitled to rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, 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 that by its terms must be fulfilled to the satisfaction of a Lender, the Agent may presume that such condition is satisfactory to such Lender unless the Agent shall ~~not incur any liability for relying thereon~~have received notice to the contrary from such Lender sufficiently in advance to the making of such Loan. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any of and all ~~its~~ their duties and exercise ~~its~~ their rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs~~ this Article shall apply to any such sub-agent and to the Related Parties of ~~each~~ the 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 Agent. The Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Agent acted with gross negligence or willful misconduct in the selection of, delegation to or supervision of such sub-agents. Subject to the ~~appointment and acceptance~~ terms of ~~a successor as provided in~~ this paragraph, the Agent may resign at any time ~~by notifying~~ from its capacity as such. In connection with such resignation, the Agent shall give notice of its intent to resign to the Lenders and ~~Level 3~~the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, ~~with~~in consultation with the Borrower, ~~so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its ~~resignation~~intent to resign, then the retiring Agent may, on behalf of the Lenders, appoint a successor ~~Agent~~ Agent, which shall be ~~a Lender or~~ a bank with an office in New York, New York, or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance by a successor of ~~its~~ the appointment as Agent ~~hereunder by a successor~~hereunder, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents. The fees payable by ~~Level 3 and~~ the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ by the Borrower and such successor. ~~After~~ Notwithstanding the foregoing, in the event no successor Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its intent to resign, the retiring Agent may give notice of the effectiveness of its resignation to the Lenders and the Borrower, whereupon, on the date of effectiveness of such resignation stated in such notice, (a) the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, provided that, solely for purposes of maintaining any security interest granted to the Agent under any Security Document for the benefit of the Secured Parties, the retiring Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties and, in the case of any Collateral in the possession of the Agent, shall continue to hold such Collateral, in each case until such time as a successor Agent is appointed and accepts such appointment in accordance with this paragraph (it being understood and agreed that the retiring Agent shall have no duty or obligation to take any further action under any Security Document, including any action required to maintain the perfection of any such security interest), and (b) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, provided that (i) all payments required to be made hereunder or under any other Loan Document to the Agent for the account of any Person other than the Agent shall be made directly to such Person and (ii) all notices and other communications required or contemplated to be given or made to the Agent shall also directly be given or made to each Lender. Following the effectiveness of the Agent’s resignation ~~hereunder~~from its capacity as such, the provisions of this Article and Section ~~9.03~~ 8.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring 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 ~~Agent~~Agent and in respect of the matters referred to in the proviso under clause (a) above. Each Lender acknowledges that it has, independently and without reliance upon the ~~Agent~~ Agent, the Arranger or any other ~~Lender~~ Lender, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the ~~Agent~~ Agent, the Arranger or any other ~~Lender~~ Lender, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.. Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Agent or the Lenders on the Effective Date. Except with respect to the exercise of setoff rights of any Lender in accordance with Section 8.08 or with respect to a Lender’s right to file a proof of claim in an insolvency proceeding, no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Secured Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Agent on behalf of the Secured Parties in accordance with the terms thereof. In the event of a foreclosure by the Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by the Agent on behalf of the Secured Parties at such sale or other disposition. In case of the pendency of any proceeding with respect to the Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Agent (including any claim under Sections 2.09, 2.10, 2.12, 2.13, 2.14 and 8.03) allowed in such judicial proceeding; and (b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender and each other Secured Party to make such payments to the Agent and, in the event that the Agent shall consent to the making of such payments directly to the Lenders or the other Secured Parties, to pay to the Agent any amount due to it, in its capacity as the Agent, under the Loan Documents (including under Section 8.03). Notwithstanding anything herein to the contrary, neither the Arranger nor any Person named on the cover page of this Agreement as a Co-Syndication Agent or a Co-Documentation Agent shall have any duties or obligations under this Agreement or any other Loan Document (except in its capacity as a Lender), but all such Persons shall have the benefit of the indemnities provided for hereunder. The provisions of this Article are solely for the benefit of the Agent and the Lenders, and, except solely to the extent of the Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Article, the Borrower shall not have any rights as a third party beneficiary of any such provisions. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral, to have agreed to the provisions of this Article. Each Lender and each of the other Secured Parties irrevocably authorizes the Agent and the Collateral Agent to, and the Agent and the Collateral Agent each hereby agrees with the Borrower to release any Lien on any Collateral and any other property granted to or held by the Agent or the Collateral Agent under any Loan Document (i) upon termination of the Aggregate Commitments and payment in full of all Obligations (other than contingent indemnification obligations), (ii) that is the subject of a disposition or other transfer permitted under and accomplished in accordance with the terms of the Loan Documents, or (iii) if approved, authorized or ratified in writing in accordance with Section 8.02(b). Upon request by the Borrower or the Agent at any time, the Required Lenders will confirm in writing the Agent’s authority to release its interest in particular types or items of property pursuant to this Article 7. In each case as specified in this Article 7, the Agent will, at the Borrower’s expense, execute and deliver to the applicable Cred

Appears in 3 contracts

Sources: Credit Agreement, Credit Agreement (Madison Square Garden Co), Credit Agreement (Madison Square Garden Co)

The Agent. Each of the Lenders hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the ~~Borrower~~ Loan Parties or any Subsidiary or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~8.01), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth ~~in the Loan Documents~~herein, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇,~~ the ~~Borrower~~ Loan Parties or any ~~of the~~ if their Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~8.01) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇, the Borrower~~ a Loan Party or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document~~this 44 49 Agreement, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV III or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or the Borrower~~any Loan Party), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The 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~~ the 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 Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, the Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Company. Upon any such resignation, the Required Lenders shall have the ~~right~~right to appoint a successor agent approved by the Company, ~~with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (~~which ~~consent shall~~ approval will not be unreasonably withheld or delayed~~) to appoint a successor~~; provided that such approval shall not be required if an Event of Default has occurred and is continuing. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a ~~Lender~~ commercial bank organized under the laws of the United States or any State thereof, having a ~~bank~~ combined capital and surplus of at least $50,000,000 with an office in New York, New York, or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of its ~~appointment~~ appointments as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the ~~Borrower~~ Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Company and such successor. After the Agent’s 's resignation hereunder, the provisions of this Article and Section ~~9.03~~ 8.04 shall continue in effect for the benefit of such retiring 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 Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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.

Appears in 3 contracts

Sources: 364 Day Credit Agreement (Bottling Group LLC), Credit Agreement (Pepsi Bottling Group Inc), Credit Agreement (Pepsi Bottling Group Inc)

The Agent. Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the ~~Borrower~~ Loan Parties or any ~~Subsidiary~~ subsidiary of a Loan Party or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, ~~except~~ except, subject to the last paragraph of this Article VIII, discretionary rights and powers expressly contemplated by the Loan Documents that the 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇, the Borrower~~ any Loan Party or any of ~~the~~ its Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇,~~ the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~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 (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~each~~ the 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 Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, the Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Issuing Bank and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing,~~ with the consent ~~of Level 3~~ (~~which consent shall~~ not to be unreasonably withheld or delayed) of the Borrower, to appoint a successor; provided that (i) during the existence and continuation of an Event of Default, no consent of the Borrower shall be required and (ii) any successor that shall also be the named secured party under any Collateral Document shall also be subject to the approval requirements, if any, of such Collateral Document. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the ~~Lenders~~Lenders and the Issuing Bank, appoint a successor Agent which shall be a ~~Lender or a~~ commercial bank ~~with an office in New York, New York,~~ or an Affiliate of ~~such Lender or~~ any such ~~bank~~commercial bank reasonably acceptable to the Borrower. If no successor Agent has been appointed pursuant to the immediately preceding sentence by the 30th day after the date such notice of resignation was given by such Agent, such Agent’s resignation shall become effective and the Required Lenders shall thereafter perform all the duties of such Agent hereunder and/or under any other Loan Document until such time, if any, as the Required Lenders appoint, with the consent of the Borrower (not to be unreasonably withheld or delayed) (so long as no Event of Default exists), a successor administrative agent and/or collateral agent, as the case may be. Any such resignation by such Agent hereunder shall also constitute, to the extent applicable, its resignation as an Issuing Bank and the Swingline Lender, in which case such resigning Agent (x) shall not be required to issue any further Letters of Credit or make any additional Swingline Loans hereunder and (y) shall maintain all of its rights as Issuing Bank or Swingline Lender, as the case may be, with respect to any Letters of Credit issued by it, or Swingline Loans made by it, prior to the date of such resignation. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrower and such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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 (a) acknowledges that it has received a copy of each Collateral Documents, (b) without limiting the foregoing, agrees that it will be bound by and will take no actions contrary to the provisions of any Collateral Documents and (c) acknowledges that the Agent will, and hereby authorizes the Agent to, enter into (and be a party to) the Collateral Documents and any intercreditor agreements on behalf of itself, such Lender and the holders of any future Specified Secured Indebtedness. The Lenders further acknowledge that, pursuant to the Collateral Documents, the Agent will have the sole right to proceed against the Collateral. In the event of a foreclosure by the Agent on any of the Collateral pursuant to a public or private sale or other disposition, any Secured Party may be the purchaser of any or all of such Collateral at any such sale or other disposition, and the Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by such Secured Party. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the foregoing provisions. The provisions of this paragraph are for the sole benefit of the Lenders and shall not afford any right to, or constitute a defense available to, any Loan Party. The Joint Lead Arrangers and joint bookrunners shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Agent and each Joint Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true: (i) such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the Commitments, (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such ▇▇▇▇▇▇’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, (iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or (iv) such other representation, warranty and covenant as may be agreed in writing between the Agent, in its sole discretion, and such Lender. In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Agent and each Joint Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that: (i) none of the Agent or any Joint Lead Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Agent under this Agreement, any Loan Document or any documents related to hereto or thereto), (ii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50.0 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E), (iii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the Obligations), (iv) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, the Letters of Credit, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and (v) no fee or other compensation is being paid directly to the Agent or any Joint Lead Arranger or any their respective Affiliates for investment advice (as opposed to other services) in connection with the Loans, the Letters of Credit, the Commitments or this Agreement. The Agent and each Joint Lead Arranger hereby informs the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, Agent or collateral agent fees,

Appears in 2 contracts

Sources: Incremental Term Loan Assumption Agreement (TransDigm Group INC), Loan Modification Agreement (TransDigm Group INC)

The Agent. ~~Each~~ (a) In order to expedite the transactions contemplated by this Agreement, CS is hereby appointed to act as Agent on behalf of the Lenders and the Fronting Banks. Each Lender and each Fronting Bank hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such actions on ~~its~~ behalf of such Lender and such Fronting Bank and to exercise such powers as are specifically delegated to the Agent by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. In The Agent is hereby expressly authorized by the ~~event~~ Lenders and the ~~institution serving as~~ Fronting Banks, without hereby limiting any implied authority, (i) to receive on behalf of the Lenders and the Fronting Banks all payments of principal of and interest on the Outstanding Credits and all other amounts due to the Lenders and the Fronting Banks hereunder, and promptly to distribute to each Lender and each Fronting Bank, its proper share of each payment so received; (ii) to give notice on behalf of each Lender and each Fronting Bank to the Borrower of any Event of Default of which the Agent ~~hereunder shall also be a Lender, it shall have the same rights~~ has actual knowledge acquired in connection with its agency hereunder; and ~~powers in its capacity as a Lender as any other~~ (iii) to distribute to each Lender and ~~may exercise~~ each Fronting Bank copies of all notices, financial statements and other materials delivered by the ~~same~~ Borrower pursuant to this Agreement as ~~though it were not~~ received by the Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, . (b) Neither the Agent nor any of its directors, officers, employees or agents shall ~~not have~~ be liable as such for any ~~duty~~ action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ~~take~~ ascertain or to make any ~~discretionary action~~ inquiry concerning the performance or ~~exercise any discretionary powers, except discretionary rights and powers expressly contemplated~~ observance by the ~~Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage~~ Borrower of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ▇▇▇▇▇ ▇, the Borrower or any of the ~~Subsidiaries of Level 3 that is communicated to~~ terms, conditions, covenants or ~~obtained by the institution serving as Agent or any of its Affiliates~~ agreements contained in ~~any capacity~~this Agreement. The Agent shall not be ~~liable~~ responsible to the Lenders or the Fronting Banks for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agent may deem and treat the Lender or the Fronting Bank that makes any ~~action taken~~ Extension of Credit as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender or ~~not taken~~ such Fronting Bank, given as provided herein, of the transfer thereof. The Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by ~~it with the consent or at the request of~~ the Required Lenders (and, except as otherwise specifically provided herein, such instructions and any action or ~~such other number or percentage of~~ inaction pursuant thereto shall be binding on all the Lenders ~~as shall be necessary under~~ and the ~~circumstances as provided in Section 9.02) or~~ Fronting Banks. The Agent shall, in the absence of ~~its own gross negligence or willful misconduct. The Agent shall be deemed not to have~~ knowledge ~~of any Default unless and until written notice thereof is given~~ to the ~~Agent by ▇▇▇▇▇ ▇~~contrary, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall 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. ~~The~~ Neither the Agent ~~also may rely upon~~ nor any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ the Borrower on account of the failure of or delay in performance or breach by ~~telephone and believed~~ any Lender or any Fronting Bank of any of its obligations hereunder or to any Lender or any Fronting Bank on account of the failure of or delay in performance or breach by ~~it to be made by~~ any other Lender, any Fronting Bank or the ~~proper Person, and shall not incur~~ Borrower of any ~~liability for relying thereon~~of their respective obligations hereunder or in connection herewith. The Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for Level 3 or the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it 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 in accordance with the advice of ~~any~~ such counsel~~, accountants or experts.~~ . (c) The Lenders and the Fronting Banks hereby acknowledge that the Agent ~~may perform~~ shall not be under any ~~and all its duties and exercise its rights and powers~~ duty to take any discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Required Lenders. (d) Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Fronting Banks and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the ~~right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ right to appoint a ~~successor~~successor Agent acceptable to the Borrower. If no successor shall have been so appointed by the Required Lenders 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~~Lenders and the Fronting Banks, appoint a successor ~~Agent which shall be~~ Agent, having a ~~Lender or a bank with an office in New York, New York,~~ combined capital and surplus of at least $500,000,000 or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of ~~its~~ any appointment as Agent 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 ~~Agent,~~ Agent and the ~~retiring~~ Agent shall be discharged from its duties and obligations hereunder~~. The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor~~. After the Agent’s resignation hereunder, the provisions of this Article and Section ~~9.03~~ 8.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as the Agent. (e) With respect to the Extensions of Credit made by it hereunder, the Agent, in its individual capacity and not as Agent, shall have the same rights and powers as any other Lender and may exercise the same as though it were not the Agent, and the Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not Agent. (f) Each Lender agrees (i) to reimburse the Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its percentage of Outstanding Credits) of any expenses incurred for the benefit of the Lenders or the Fronting Banks, in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Fronting Banks, which shall not have been reimbursed by the Borrower and (ii) to indemnify and hold harmless the Agent and any of its 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 it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrower; provided that neither any Lender nor any Fronting Bank shall be liable to the 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 the Agent or any of its directors, officers, employees or agents. Each Lender and each Fronting Bank agrees that any allocation made in good faith by the Agent of expenses or other amounts referred to in this subsection (f) shall be conclusive and binding for all purposes. (g) Each Lender and each Fronting Bank acknowledges that it has, independently and without reliance upon the Agent or any other Lender or Fronting Bank, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Fronting Bank also acknowledges that it will, independently and without reliance upon the Agent or any other Lender or Fronting Bank, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. (h) Neither Citigroup Global Markets Inc. nor Credit Suisse Securities (USA) LLC, by virtue of its designation as a “Joint Lead Arranger and Bookrunners” on the cover page of this Agreement, shall have any duties, liabilities, obligations or responsibilities under this Agreement other than, if applicable, as the Agent, or as a Lender or as a Fronting Bank hereunder.

Appears in 2 contracts

Sources: Revolving Credit Agreement (Txu Corp /Tx/), Revolving Credit Agreement (Txu Energy Co LLC)

The Agent. In order to expedite the transactions contemplated by this Agreement, Citibank, N.A. is hereby appointed to act as Agent on behalf of the Lenders. Each of the Lenders hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such actions on ~~its~~ behalf of such Lender and to exercise such powers as are specifically delegated to the Agent by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent ~~shall not have~~ is hereby expressly authorized by the Lenders, without hereby limiting any ~~duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing~~implied authority, (a) to receive on behalf of the ~~Agent shall not 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) ~~the 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 Agent is required to exercise in writing by the Required Lenders (or such other number or percentage give notice on behalf of each of the Lenders ~~as shall be necessary under~~ to the ~~circumstances as provided~~ Borrower of any Event of Default specified in ~~Section 9.02), and shall not have any duty to take any action or exercise any powers that would result~~ this Agreement of which the Agent has actual knowledge acquired in ~~the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders,~~ connection with its agency hereunder; and (c) ~~except~~ to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as ~~expressly set forth in~~ received by the ~~Loan Documents,~~ Agent. Neither the Agent nor any of its directors, officers, employees or agents shall ~~not have any duty to disclose, and shall not~~ be liable as such for any action taken or omitted by any of them except for its or his own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the ~~failure~~ contents of any document delivered in connection herewith, or be required to ~~disclose,~~ ascertain or to make any ~~information relating to ▇▇▇▇▇ ▇,~~ inquiry concerning the performance or observance by the Borrower or of any of the ~~Subsidiaries of Level 3 that is communicated to~~ terms, conditions, covenants or ~~obtained by the institution serving as Agent or any of its Affiliates~~ agreements contained in ~~any capacity~~this Agreement. The Agent shall not be ~~liable~~ responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agent may deem and treat the Lender which makes any ~~action taken~~ 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 Agent shall in all cases be fully protected in acting, or ~~not taken~~ refraining from acting, in accordance with written instructions signed by ~~it with the consent or at the request of~~ the Required Lenders (and, except as otherwise specifically provided herein, such instructions and any action or ~~such other number or percentage of the Lenders as~~ inaction pursuant thereto shall be ~~necessary under~~ binding on all the ~~circumstances as provided in Section 9.02) or~~ Lenders. The Agent shall, in the absence of ~~its own gross negligence or willful misconduct. The Agent shall be deemed not to have~~ knowledge ~~of any Default unless and until written notice thereof is given~~ to the ~~Agent by ▇▇▇▇▇ ▇~~contrary, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall 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. ~~The~~ Neither the Agent ~~also may rely upon~~ nor any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ the Borrower on account of the failure of or delay in performance or breach by ~~telephone and believed~~ 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 ~~it to be made by~~ any other Lender or the ~~proper Person, and shall not incur~~ Borrower of any ~~liability for relying thereon~~of their respective obligations hereunder or in connection herewith. The Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for Level 3 or the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it 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 in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. The Lenders hereby acknowledge that the Agent ~~may perform~~ shall be under no duty to take any ~~and all its duties and exercise its rights and powers~~ discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the ~~right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ right to appoint a ~~successor~~successor Agent acceptable to the Borrower. If no successor shall have been so appointed by the Required Lenders 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, appoint a successor Agent which shall be a ~~Lender or a~~ 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 ~~such Lender or~~ any such bank. Upon the acceptance of ~~its~~ any appointment as Agent 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 ~~Agent,~~ Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor.~~ After the Agent’s 's resignation hereunder, the provisions of this Article and Section ~~9.03~~ 8.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Agent. With respect to the Loans made by it hereunder, the Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not the Agent, and the Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Agent. Each Lender agrees (i) to reimburse the Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder) of any expenses incurred for the benefit of the Lenders by the Agent, 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 Borrower, and (ii) to indemnify and hold harmless the Agent and any of its 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 it in its capacity as the Agent or any of them in any way relating to or arising out of this Agreement or any action taken or omitted by it or any of them under this Agreement to the extent the same shall not have been reimbursed by the Borrower; provided that no Lender shall be liable to the 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 the Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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 acknowledges that none of the Lead Arranger, the Co-Syndication Agents, the Co-Arrangers or any agent (other than the Agent) designated on the signature pages hereof has any liability hereunder other than in its capacity as a Lender.

Appears in 2 contracts

Sources: Five Year Revolving Credit Facility Agreement (Avaya Inc), Revolving Credit Facility Agreement (Avaya Inc)

The Agent. Each of the Lenders hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3, the Borrower~~ Holdings or any Subsidiary or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇, the Borrower~~ Holdings or any of ~~the~~ its Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any ~~capacity~~capacity (other than as Agent). The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇,~~ the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the reasonable advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor to the Agent as provided in this paragraph, the Agent may (i) resign at any time by notifying the Lenders and ~~Level 3~~the Borrower or (ii) be removed at any time by the Required Lenders by notifying the Administrative Agent and Borrower. Upon any such ~~resignation~~resignation or removal, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing,~~ with the consent of ~~Level 3~~ the Borrower (~~which~~ such consent ~~shall~~ not to be unreasonably withheld or ~~delayed)~~ delayed and such consent not to be required if an Event of Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its ~~resignation~~resignation or the retiring Agent has received notice of removal from the Required Lenders, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a ~~Lender or a~~ bank with an office in New York, New York, or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrower and such successor. After the Agent’s resignation or removal hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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.

Appears in 2 contracts

Sources: Credit Agreement (Thryv Holdings, Inc.), Credit Agreement (Thryv Holdings, Inc.)

The Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In Without limiting the ~~event~~ generality of the ~~institution~~ foregoing, the Agent shall have the sole and exclusive authority to (a) act as the disbursing and collecting agent for Lenders with respect to all payments and collections arising in connection with the Loan Documents, including, with respect to the Canadian Loan Parties, the Agent acting through its Canada branch; (b) execute and deliver as Agent each Loan Document, including any intercreditor or subordination agreement, and accept delivery of each Loan Document from any Loan Party or other Person; (c) act as collateral agent for Secured Parties for purposes of perfecting and administering Liens under the Loan Documents, and for all other purposes stated therein; (d) manage, supervise or otherwise deal with Collateral; and (e) take any enforcement action or otherwise exercise any rights or remedies with respect to any Collateral under the Loan Documents, applicable law or otherwise. The Agent alone shall be authorized to determine whether any Accounts or Inventory constitute Eligible Receivables or Eligible Inventory, or whether to impose or release any Reserve, which determinations and judgments, if exercised in good faith, shall exonerate the Agent from liability to any Lender or other Person for any error in judgment. Any bank serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the ~~Borrower~~ Loan Parties or any ~~Subsidiary~~ subsidiary of a Loan Party or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇, the Borrower~~ any Loan Party or any of ~~the Subsidiaries of Level 3~~ its subsidiaries that is communicated to or obtained by the ~~institution~~ bank serving as the Agent or any of its Affiliates in any capacity. The 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 of, or for any losses not directly and solely caused by, its own gross negligence or willful misconduct. The Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇,~~ the Borrower Agent or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~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 (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. ~~As to~~ If any ~~matters not expressly provided for by this Agreement~~ Lender acquires knowledge of a Default or Event of Default, it shall promptly notify the Agent and the other Lenders thereof in writing. Each Lender agrees that, except as otherwise provided in any Loan Documents ~~(including enforcement~~ or ~~collection),~~ with the ~~Administrative~~ written consent of the Agent and the ~~Collateral Agent shall~~ Required Lenders, it will not ~~be required to~~ take any enforcement action, accelerate the Obligations under any Loan Documents, or exercise any ~~discretion~~ right that it might otherwise have under Applicable Law to credit bid at foreclosure sales, UCC sales or ~~take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon~~ other similar dispositions of Collateral. Notwithstanding the ~~instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided~~foregoing, however, a Lender may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the ~~Administrative Agent and~~ Obligations held by such Lender, including the ~~Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent~~ filing of proofs of claim in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable lawa Bankruptcy Proceeding. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more agents, co-agents or sub-agents appointed by the Agent. The Agent and any such agents, co-agents or sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The Lenders shall execute and deliver such documents as the Agent deems appropriate to vest any rights or remedies in such agents, co-agents or sub-agent. The exculpatory provisions of the preceding paragraphs shall apply to any such agents, co-agents or sub-agent and to the Related Parties of ~~each~~ the Agent and any agents, co-agents or 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 Agent. Subject to the appointment and acceptance of a successor to the Agent as provided in this paragraph, the Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Issuing Banks and ~~Level 3~~the Borrower Agent. Upon any such resignation, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing,~~ with the consent ~~of Level 3~~ (~~which consent shall~~ not to be unreasonably withheld or delayed) of the Company, to appoint a successor; provided that, during the existence and continuation of an Event of Default, no consent of the Company shall be required. If no successor shall have been so appointed by the Required Lenders 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~~Lenders and the Issuing Banks, appoint a successor Agent which shall be a ~~Lender or a~~ commercial bank ~~with an office in New York, New York,~~ or an Affiliate of ~~such Lender or~~ any such ~~bank~~commercial bank reasonably acceptable to the Company. Upon the acceptance of its appointment as the Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the ~~Borrower~~ Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Company and such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Agent, its sub-~~agents~~ agents, branches and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as the Agent. Any successor to BANA by merger or acquisition of stock or this loan shall continue to be the Agent hereunder without further act on the part of the parties hereto, unless such successor resigns as provided above. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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 Agent; (b) the Agent (i) does not make 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 or (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 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 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 attorneys’ fees) incurred by the 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 and any action such Lender may take as a result of or any conclusion it may draw from any such Report. For the purposes of creating a solidarité active in accordance with Article 1541 of the Civil Code of Quebec between each Secured Party, taken individually, on the one hand, and the Agent, on the other hand, each Loan Party and each such Secured Party acknowledge and agree with the Agent that such Secured Party and the Agent are hereby conferred the legal status of solidary creditors of each such Loan Party in respect of all Obligations owed by each such Loan Party to the Agent and such Secured Party hereunder and under the other Loan Documents (collectively, the “Solidary Claim”) and that, accordingly, but subject (for the avoidance of doubt) to Article 1542 of the Civil Code of Quebec, each such Loan Party is irrevocably bound towards the Agent and each Secured Party in respect of the entire Solidary Claim of the Agent and such Secured Party. As a result of the foregoing, the parties hereto acknowledge that the Agent and each Secured Party shall at all times have a valid and effective right of action for the entire Solidary Claim of the Agent and such Secured Party and the right to give full acquittance for it. Accordingly, and without limiting the generality of the foregoing, the Agent, as solidary creditor with each Secured Party, shall at all times have a valid and effective right of action in respect of the Solidary Claim and the right to give a full acquittance for same. By its execution of the Loan Documents to which it is a party, each such Loan Party not a party hereto shall also be deemed to have accepted the stipulations hereinabove provided. The parties further agree and acknowledge that such Liens (hypothecs) under the Collateral Documents and the other Loan Documents shall be granted to the Agent, for its own benefit and for the benefit of the applicable Secured Parties, as solidary creditor as hereinabove set forth. In addition, and without limiting any of the foregoing, for the purposes of holding any hypothec granted to the Attorney (as defined below) pursuant to the laws of the Province of Quebec to secure payment of any debenture issued by any Loan Party, each of the Secured Parties (as defined below) hereby irrevocably appoints and authorizes the Agent and, to the extent necessary, ratifies the appointment and authorization of the Agent, to act as the person holding the power of attorney (i.e. “fondé de pouvoir”) (in such capacity, the “Attorney”) of the creditors as contemplated under Article 2692 of the Civil Code of Quebec, and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties that are conferred upon the Attorney under any related deed of hypothec. Moreover, without prejudice to such appointment and authorization to act as the person holding the power of attorney as aforesaid, each of the Secured Parties hereby irrevocably appoints and authorizes the Agent (in such capacity, the “Quebec Custodian”) to act as agent and custodian for and on behalf of the Secured Parties to hold and be the sole registered holder of any debenture which may be issued under any such deed of hypothec, the whole notwithstanding Section 32 of An Act respecting the

Appears in 2 contracts

Sources: Credit Agreement (ATD Corp), Credit Agreement (ATD Corp)

The Agent. In order to expedite the transactions contemplated by this Agreement, Citibank, N.A. is hereby appointed to act as Agent on behalf of the Lenders. Each of the Lenders hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such actions on ~~its~~ behalf of such Lender and to exercise such powers as are specifically delegated to the Agent by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent ~~shall not have~~ is hereby expressly authorized by the Lenders, without hereby limiting any ~~duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing~~implied authority, (a) to receive on behalf of the ~~Agent shall not 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) ~~the 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 Agent is required to exercise in writing by the Required Lenders (or such other number or percentage give notice on behalf of each of the Lenders ~~as shall be necessary under~~ to the ~~circumstances as provided~~ Borrower of any Event of Default specified in ~~Section 9.02), and shall not have any duty to take any action or exercise any powers that would result~~ this Agreement of which the Agent has actual knowledge acquired in ~~the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders,~~ connection with its agency hereunder; and (c) ~~except~~ to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as ~~expressly set forth in~~ received by the ~~Loan Documents,~~ Agent. Neither the Agent nor any of its directors, officers, employees or agents shall ~~not have any duty to disclose, and shall not~~ be liable as such for any action taken or omitted by any of them except for its or his own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the ~~failure~~ contents of any document delivered in connection herewith, or be required to ~~disclose,~~ ascertain or to make any ~~information relating to ▇▇▇▇▇ ▇,~~ inquiry concerning the performance or observance by the Borrower or of any of the ~~Subsidiaries of Level 3 that is communicated to~~ terms, conditions, covenants or ~~obtained by the institution serving as Agent or any of its Affiliates~~ agreements contained in ~~any capacity~~this Agreement. The Agent shall not be ~~liable~~ responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agent may deem and treat the Lender which makes any ~~action taken~~ 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 Agent shall in all cases be fully protected in acting, or ~~not taken~~ refraining from acting, in accordance with written instructions signed by ~~it with the consent or at the request of~~ the Required Lenders (and, except as otherwise specifically provided herein, such instructions and any action or ~~such other number or percentage of the Lenders as~~ inaction pursuant thereto shall be ~~necessary under~~ binding on all the ~~circumstances as provided in Section 9.02) or~~ Lenders. The Agent shall, in the absence of ~~its own gross negligence or willful misconduct. The Agent shall be deemed not to have~~ knowledge ~~of any Default unless and until written notice thereof is given~~ to the ~~Agent by ▇▇▇▇▇ ▇~~contrary, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall 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. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for Level 3 or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor as provided in this paragraph, the Agent may resign at any time by notifying the Lenders and Level 3. Upon any such resignation, the Required Lenders shall have the right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a Lender or a bank with an office in New York, New York, or an Affiliate of such Lender or any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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.person or

Appears in 2 contracts

Sources: Competitive Advance and Revolving Credit Facility Agreement (Avaya Inc), 364 Day Competitive Advance and Revolving Credit Facility Agreement (Avaya Inc)

The Agent. Each of the Lenders hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇~~the Ultimate Parent, the Borrower or any of ~~the~~ its Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any ~~capacity~~capacity (other than as Agent). The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇,~~ the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor to the Agent as provided in this paragraph, the Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing,~~ with the consent of ~~Level 3~~ the Borrower (~~which~~ such consent ~~shall~~ not to be unreasonably withheld or ~~delayed~~delayed and such consent not to be required if an Event of Default under clause (a), (b), (i) or (j) of Article VII has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a ~~Lender or a~~ bank with an office in New York, New York, or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of its appointment as Agent and Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrower and such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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. The Arrangers and Syndication Agent shall be entitled to the benefits of this Article VIII.

Appears in 2 contracts

Sources: Credit Agreement (Dex Media, Inc.), Credit Agreement (DEX ONE Corp)

Appears in 2 contracts

Sources: Credit Agreement (Neiman Marcus Group Inc), Credit Agreement (Neiman Marcus, Inc.)

The Agent. Each of the Lenders hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇~~the Ultimate Parent, the Borrower or any of ~~the~~ its Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any ~~capacity~~capacity (other than as Agent). The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇,~~ the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The 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~~thereon other than as a result of its gross negligence or willful misconduct. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or ~~experts~~experts other than as a result of its gross negligence or willful misconduct. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the ~~Agent~~Agent in the exercise of its reasonable judgment. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. ~~Subject to the appointment and acceptance of a successor as provided in this paragraph, the~~ The Agent may resign as Agent at any time ~~by notifying~~ upon 15 days notice to the Lenders and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing,~~ with the consent of ~~Level 3~~ the Borrower (~~which~~ such consent ~~shall~~ not to be unreasonably withheld or ~~delayed~~delayed and such consent not to be required if an Event of Default under clause (a), (b), (h) or (i) of Article VII has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 15 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, with the consent of the Borrower (such consent shall not be unreasonably withheld or delayed and such consent shall not be required if an Event of Default under clause (a), (b), (h) or (i) of Article VII has occurred and is continuing), on behalf of the Lenders, appoint a successor Agent which shall be ~~a Lender or~~ a bank with an office in New York, New York, or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of its appointment as Agent and Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. If no successor agent has accepted appointment as Agent by the date that is 5 days following a retiring Agent’s notice of resignation, the retiring Agent’s resignation shall nevertheless thereupon become effective, and the Lenders shall assume and perform all of the duties of the Agent hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for above. The fees payable by ~~Level 3 and~~ the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ in writing between the Borrower and such successor. After ~~the~~ any Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 Agent. Pursuant to the Reorganization Plan, the Agent, on behalf of the Lenders, is empowered and authorized to execute and deliver to the Loan Parties the other Loan Documents and all related agreements, certificates, documents, or instruments as shall be necessary or appropriate to effect the purposes of the Loan Documents. Any action taken by the Agent or the Required Lenders (or any other instructing group of Lenders specified by this Agreement) in accordance with the terms of this Agreement or the other Loan Documents, and the exercise by the Agent or the Required Lenders (or any other instructing group of Lenders specified by this Agreement) of their respective powers set forth therein or herein, together with such other powers that are reasonably incidental thereto, shall be binding upon all of the Lenders. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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. Neither the joint lead arrangers, the syndication agent nor the co-documentation agents listed on the cover page to this Agreement shall have any duties or responsibilities hereunder in their capacities as such.

Appears in 2 contracts

Sources: Loan Agreement (Supermedia Inc.), Loan Agreement (Dex Media, Inc.)

The Agent. (a) Each ~~of the Lenders~~ Lessor Party hereby ~~irrevocably~~ designates and appoints the Agent as ~~its~~ administrative agent and collateral agent of such Lessor Party to act as specified herein and in the other Operative Agreements, and each such Lessor Party hereby authorizes the Agent as the administrative agent and collateral agent for such Lessor Party, to take such ~~actions~~ action on its behalf under the provisions of this Agreement and the other Operative Agreements and to exercise such powers and perform such duties as are expressly delegated ~~to the Agent~~ by the terms hereof and of the ~~Loan Documents~~other Operative Agreements, together with such ~~actions and~~ other powers as are reasonably incidental thereto. In Such delegation of authority shall include the ~~event the institution serving as~~ execution and delivery by the Agent ~~hereunder shall also be a Lender, it shall have~~ of release instruments in recordable form releasing the ~~same rights and powers~~ Lien of the Operative Agreements in ~~its capacity as a Lender as~~ accordance with the requirements thereof. Notwithstanding any ~~other Lender and may exercise~~ provision to the ~~same as though it were not the Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage~~ contrary in any ~~kind~~ of ~~business with Level 3~~the Operative Agreements, the ~~Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The~~ Agent shall not have any duties or ~~obligations~~ responsibilities, except those expressly set forth ~~in the Loan Documents. Without limiting the generality~~ herein and therein, or any fiduciary relationship with any Lessor Party, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any of the ~~foregoing~~other Operative Agreements, ~~(a)~~ or shall otherwise exist against the Agent. The provisions of this Section 8.6 are solely for the benefit of the Agent and the Lessor Parties and no other Person shall ~~not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not~~ have any ~~duty to take any discretionary action or exercise any discretionary powers, except discretionary~~ rights ~~and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage~~ as a third party beneficiary of the ~~Lenders~~ provisions hereof. Except as ~~shall be necessary under the circumstances as~~ otherwise provided in this Section ~~9.02)~~8.6, in performing its functions and ~~shall not have any duty to take any action or exercise any powers that would result in~~ duties under this Agreement and the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documentsother Operative Agreements, the Agent shall act solely as Agent of the Lessor Parties. The Agent does not ~~have any duty to disclose,~~ assume and shall not be ~~liable~~ deemed to have assumed any obligation or relationship of agency or trust with or for ~~the failure to disclose,~~ any ~~information relating to ▇▇▇▇▇ ▇, the Borrower~~ Credit Party or any ~~of the Subsidiaries of Level 3 that is communicated to or obtained by the institution serving as~~ other Person. (b) The Agent or may execute any of its ~~Affiliates in any capacity~~duties hereunder or under the other Operative Agreements by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care. (c) Neither the Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any action lawfully taken or ~~not~~ omitted to be taken by it or such Person under or in connection herewith or in connection with ~~the consent or at the request~~ any of the ~~Required Lenders~~ other Operative Agreements (except for its 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~~ Person’s own gross negligence or willful misconduct), or (ii) responsible in any manner to any Lessor Party for any recitals, statements, representations or warranties contained herein or in any of the other Operative Agreements or in any certificate, report, statement or other document referred to or provided for in, or received by the Agent under or in connection herewith or in connection with the other Operative Agreements, or enforceability or sufficiency of any of the other Operative Agreements, or for any failure of any party (not including the Agent) to any Operative Agreement to perform its obligations hereunder or thereunder. The ~~Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ▇▇▇▇▇ ▇, the Borrower or a Lender, and the~~ Agent shall not be responsible to any Lessor Party for the effectiveness, genuineness, validity, enforceability, collectability or ~~have~~ sufficiency of this Agreement, or any ~~duty~~ of the other Operative Agreements or for any representations, warranties, recitals or statements made herein or therein or made by any Credit Party in any written or oral statement or in any financial or other statements, instruments, reports, certificates or any other documents in connection herewith or therewith furnished or made by the Agent to any Lessor Party or by or on behalf of any Credit Party to the Agent or any Lessor Party or be required 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 thereunder or in connection therewith, (iii) as to the performance or observance of any of the ~~covenants~~terms, conditions, provisions, covenants or agreements contained herein or ~~other terms~~ therein or ~~conditions set forth in any Loan Document, (iv)~~ as to the ~~validity, enforceability, effectiveness~~ use of the proceeds of the purchases or ~~genuineness~~ of the existence or possible existence of any ~~Loan Document~~ Default or ~~any other agreement~~Event of Default or to inspect the properties, ~~instrument~~ books or ~~document, or (v) the satisfaction~~ records of any ~~condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt~~ of ~~items expressly required to be delivered to~~ the ~~Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents~~ Credit Parties. (~~including enforcement or collection), the Administrative Agent and the Collateral~~ d) The Agent shall ~~not~~ be ~~required~~ entitled to ~~exercise any discretion or take any action~~rely, ~~but shall be required to act or to refrain from acting (~~and shall be fully protected in ~~so acting~~ relying, upon any note, writing, resolution, notice, consent, certificate, affidavit, letter, facsimile, email, cablegram, telegram, telecopy, telex, teletype or ~~refraining from acting) upon the instructions of the Requisite Lenders~~electronic message, ~~and such instructions shall be binding upon all Lenders~~statement, ~~provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent~~ order or ~~the Collateral Agent~~ other document or conversation believed by it in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The 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 correct and to have been ~~signed~~ signed, sent or ~~sent by the proper Person. The 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,~~ Person or Persons and ~~shall not incur any liability for relying thereon. The Agent may consult with~~ upon advice and statements of legal counsel (~~who may be~~ including counsel ~~for Level 3 or the Borrower~~to any Credit Party), independent accountants and other experts selected by itthe Agent with reasonable care. The Agent may deem and treat the Lessor Parties as the owner of their respective interests hereunder for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Agent in accordance with Section 10 or any other applicable provision of the Operative Agreements. The Agent, acting in its capacity as Agent, shall be fully justified in failing or refusing to take any action under this Agreement or under any of the other Operative Agreements unless it shall first receive such advice or concurrence of the Majority Secured Parties as it deems appropriate or it shall first be indemnified to its satisfaction by the Lessor Parties against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder or under any of the other Operative Agreements in accordance with a request of the Majority Secured Parties or all the Lessor Parties if such request is a Unanimous Vote Matter and such request, and ~~shall not be liable for~~ any action taken or failure to act pursuant thereto shall be binding upon all the Lessor Parties (including their successors and assigns). (e) The Agent shall not ~~taken by it in accordance with~~ be deemed to have knowledge or notice of the ~~advice~~ occurrence of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor as provided in this paragraph, the Agent may resign at any time by notifying the Lenders and Level 3. Upon any such resignation, the Required Lenders shall have the right, with, so long as no Default or Event of Default ~~shall have occurred and be continuing~~unless the Agent has received notice from a Lessor Party, the ~~consent~~ Construction Agent or the Lessee referring to the Operative Agreement, describing such Default or Event of ~~Level 3 (which consent~~ Default and stating that such notice is a “notice of default.” In the event that the Agent receives such a notice, the Agent shall ~~not~~ give prompt notice thereof to the Lessor Parties. Subject to this Section 8.6 of the Participation Agreement, the Agent shall take such action with respect to such Default or Event of Default as shall be ~~unreasonably withheld or delayed) to appoint a successor. If no successor shall have been so appointed~~ directed by the ~~Required Lenders and shall have accepted such appointment within 30 days after~~ Majority Secured Parties. (f) Each Lessor Party expressly acknowledges that neither the ~~retiring~~ Agent ~~gives notice~~ nor any of its ~~resignation~~officers, ~~then~~ directors, employees, agents, attorneys-in-fact or affiliates has made any representations or warranties to it and that no act by the ~~retiring~~ Agent ~~may~~or any affiliate thereof hereafter taken, ~~on behalf~~ including any review of the ~~Lenders~~affairs of the Credit Parties, ~~appoint a successor Agent which~~ shall be ~~a Lender~~ deemed to constitute any representation or ~~a bank with an office in New York, New York, or an Affiliate of such Lender or~~ warranty by the Agent to any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 AgentLessor Party. Each ~~Lender acknowledges~~ Lessor Party represents to the Agent that it has, independently and without reliance upon the Agent or any other ~~Lender~~ Lessor Party, and based on such documents and information as it has deemed appropriate, made its own ~~credit analysis~~ appraisal of and investigation into the business, assets, operations, property, financial and other conditions, prospects and creditworthiness of the Credit Parties and made its own decision to make its purchases hereunder and enter into this Agreement. Each ~~Lender~~ Lessor Party also ~~acknowledges~~ represents that it will, independently and without reliance upon the Agent or any other ~~Lender~~ Lessor Party, and based on such documents and information as it shall ~~from time to time~~ deem ~~appropriate~~appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under ~~or based upon~~ this Agreement, and to make such investigation as it deems necessary to inform itself as to the business, assets, operations, property, financial and other conditions, prospects and creditworthiness of the Credit Parties. Except for notices, reports and other documents expressly required to be furnished to the Lessor Parties by the Agent pursuant to this Agreement, the Agent shall not have any duty or responsibility to provide any Lessor Party with any credit or other information concerning the business, operations, assets, property, financial or other conditions, prospects or creditworthiness of the Credit Parties which may come into the possession of the Agent or any of its officers, directors, employees, agents, attorneys-in-fact or affiliates. (g) The Agent and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with the Credit Parties as though the Agent were not Agent hereunder. (h) The provisions of Section 10.3 shall govern with respect to the replacement of the Agent. (i) Regarding the Agent functioning as the collateral agent for the Secured Parties, each of the Lessor (and to the extent necessary, each of the other Lessor Parties) hereby assigns to the Agent the Lien granted by the Lessee pursuant to the Lease to secure the Lessor Advances. The Secured Parties acknowledge, agree and direct that the rights and remedies of the Secured Parties in connection with an Event of Default, including as beneficiaries of the Lien of the Security Documents, shall be exercised by the Agent on behalf of the Secured Parties as directed from time to time (a) by the Majority Secured Parties; provided, notwithstanding the foregoing, the Agent shall not take any action concerning the exercise of remedies or otherwise under any of the Operative Agreements with respect to the Property (regardless of whether a Default or Event of Default has occurred and is continuing) unless the Lessor has expressly consented to such action or (b) pursuant to Sections 8.2(c) and 12.4, by the Lessor Parties; provided, that for the avoidance of doubt, nothing in this Section 8.6 shall affect any automatic acceleration, right of acceleration or right to terminate the Lessor Parties Commitment exercised in accordance with the applicable Operative Agreements; and provided further, in all cases, the Agent shall allocate payments and other amounts received in accordance with Section 8.7. Except in the case of Excepted Payments and other rights expressly reserved by the Lessor pursuant to the Operative Agreements and subject to Section 12.4, the Agent is further appointed to provide notices under the Operative Agreements on behalf of the Lessor (as determined by the Agent, in its reasonable discretion with regard to matters concerning the Collateral) and to receive notices under the Operative Agreements on behalf of the Lessor with regard to matters concerning the Collateral. The Agent hereby accepts such appointments. The Agent hereby further agrees promptly to provide notices and other documentation received from time to time from the Credit Parties to the Lessor Parties. The parties hereto hereby agree to the provisions contained in this Section 8.6. For the avoidance of doubt and notwithstanding anything contained in this Agreement or any other ~~Loan Document or related agreement or~~ Operative Agreement to the contrary, each Financing Party agrees that no Secured Party (other than the Agent) shall have the right to individually seek to realize upon any ~~document furnished hereunder or thereunder~~Lien granted by any Security Document, it being understood and agreed that such rights and remedies may be exercised solely by the Agent for the benefit for the Secured Parties upon the terms of the Operative Agreements; provided, if any action requires the participation of the Lessor (given the Lessor is the holder of legal title to the Property), then the Lessor shall participate in such action as reasonably requested by the Agent.

Appears in 2 contracts

Sources: Operative Agreements (Big Lots Inc), Participation Agreement (Big Lots Inc)

The Agent. Each of the Lenders hereby irrevocably appoints the Agent as its administrative agent and collateral agent and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In Without limiting the ~~event~~ generality of the ~~institution~~ foregoing, the Agent is hereby expressly authorized to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents. The bank serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3~~Holdings, the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that the Agent is ~~required~~ instructed in writing to exercise ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, 9.08) and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, ~~and~~ nor shall ~~not~~ it be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇~~Holdings, the Borrower or any of the Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as the Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~9.08) or in the absence of its own gross negligence or willful misconduct. The Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇~~Holdings, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The 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~~person. The Agent may also ~~may~~ rely upon any statement made to it orally or by telephone and believed by it to be have been made by the proper ~~Person~~person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by ~~the Agent~~it. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their ~~respective~~ Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~each~~ the 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~~ contemplated hereby as well as activities as the Agent. Without limiting the generality of the foregoing, JPMorgan Chase Bank, N.A. shall act as sub-collateral agent for purposes of the BLM Leases (the “BLM Sub-Collateral Agent”). The BLM Sub-Collateral Agent shall act at the direction of the Collateral Agent and shall have no liability to Holdings, the Borrower, any Lender or any of their Related Persons for any actions taken by it in accordance with such direction. Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with~~in consultation with the Borrower, ~~so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a ~~Lender or a~~ bank with an office in New York, New York, or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrower and such successor. After ~~the~~ an Agent’s resignation hereunder, the provisions of this Article and Section ~~9.03~~ 9.05 shall continue in effect for the benefit of such retiring 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 Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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~~ Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary, neither the Syndication Agent nor any arranger, bookrunner or documentation agent listed on the cover page hereof shall have, in any such capacity, any duty or responsibility under any Loan Document.

Appears in 2 contracts

Sources: First Lien Credit Agreement (Forest Oil Corp), Second Lien Credit Agreement (Forest Oil Corp)

The Agent. Each of the Lenders hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3~~Holdings, the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇~~the Ultimate Parent, the Parent, Holdings, the Borrower or any of ~~the~~ its Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any ~~capacity~~capacity (other than as Agent). The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇~~Holdings, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor to the Agent as provided in this paragraph, the Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing,~~ with the consent of ~~Level 3~~ the Borrower (~~which~~ such consent ~~shall~~ not to be unreasonably withheld or ~~delayed~~delayed and such consent not to be required if an Event of Default under clause (a), (b), (i) or (j) of Article VII has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a ~~Lender or a~~ bank with an office in New York, New York, or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of its appointment as Agent and Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrower and such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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. The Arrangers and Syndication Agent shall be entitled to the benefits of this Article VIII.

Appears in 2 contracts

Sources: Credit Agreement (DEX ONE Corp), Credit Agreement (DEX ONE Corp)

The Agent. ~~Each~~ (a) In order to expedite the transactions contemplated by this Agreement, SMBC is hereby appointed to act as Agent on behalf of the ~~Lenders~~ Lenders. Each Lender hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such actions on ~~its~~ behalf of such Lender and to exercise such powers as are specifically delegated to the Agent by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent ~~shall not have any duties or obligations except those~~ is hereby expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made authorized by the Lenders, without hereby limiting any implied authority, (i) 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; (ii) to give notice on behalf of each Lender to the Borrower of any Event of Default of which the Agent has actual knowledge acquired in connection with its agency hereunder; and (ciii) ~~except~~ to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as ~~expressly set forth in~~ received by the ~~Loan Documents,~~ Agent. (b) Neither the Agent nor any of its directors, officers, employees or agents shall ~~not have any duty to disclose, and shall not~~ be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the ~~failure~~ contents of any document delivered in connection herewith, or be required to ~~disclose,~~ ascertain or to make any ~~information relating to ▇▇▇▇▇ ▇,~~ inquiry concerning the performance or observance by the Borrower or of any of the ~~Subsidiaries of Level 3 that is communicated to~~ terms, conditions, covenants or ~~obtained by the institution serving as Agent or any of its Affiliates~~ agreements contained in ~~any capacity~~this Agreement. The Agent shall not be ~~liable~~ responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agent may deem and treat the Lender that makes any ~~action taken~~ Extension 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 Agent shall in all cases be fully protected in acting, or ~~not taken~~ refraining from acting, in accordance with written instructions signed by ~~it with the consent or at the request of~~ the Required Lenders (and, except as otherwise specifically provided herein, such instructions and any action or ~~such other number or percentage of the Lenders as~~ inaction pursuant thereto shall be ~~necessary under~~ binding on all the ~~circumstances as provided in Section 9.02) or~~ Lenders. The Agent shall, in the absence of ~~its own gross negligence or willful misconduct. The Agent shall be deemed not to have~~ knowledge ~~of any Default unless and until written notice thereof is given~~ to the ~~Agent by ▇▇▇▇▇ ▇~~contrary, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall 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. ~~The~~ Neither the Agent ~~also may rely upon~~ nor any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ the Borrower or any Subsidiary on account of the failure of or delay in performance or breach by ~~telephone and believed~~ 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 ~~it to be made by~~ any other Lender or the ~~proper Person, and shall not incur~~ Borrower or any ~~liability for relying thereon~~Subsidiary of any of their respective obligations hereunder or in connection herewith. The Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for Level 3 or the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it 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 in accordance with the advice of ~~any~~ such counsel~~, accountants or experts.~~ . (c) The Lenders hereby acknowledge that the Agent ~~may perform~~ shall not be under any ~~and all its duties and exercise its rights and powers~~ duty to take any discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Required Lenders. (d) Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the ~~right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ right to appoint a ~~successor~~successor Agent acceptable to the Borrower. If no successor shall have been so appointed by the Required Lenders 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, appoint a successor ~~Agent which~~ Agent, having a combined capital and surplus of at least $5,000,000,000 (or such lower amount as shall be ~~a Lender or a bank with an office in New York, New York,~~ acceptable to the Borrower) or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of ~~its~~ any appointment as Agent 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 ~~Agent,~~ Agent and the ~~retiring~~ Agent shall be discharged from its duties and obligations hereunder~~. The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor~~. After the Agent’s resignation hereunder, the provisions of this Article and Section ~~9.03~~ 8.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as the Agent. (e) With respect to the Extensions of Credit made by it hereunder, SMBC, in its individual capacity and not as Agent, shall have the same rights, obligations and powers as any other Lender and may exercise the same as though it were not the Agent, and the Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not Agent. (f) Each Lender agrees (i) to reimburse the Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if all of the Commitments shall have been terminated, the amount of its percentage of Loans) of any expenses incurred for the benefit of the Lenders, in its role as Agent, 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 Borrower (but without limiting the Borrower’s obligation to make such reimbursement) and (ii) to indemnify and hold harmless the Agent and any of its 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 it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrower; provided that no Lender shall be liable to the 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 the Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agent of expenses or other amounts referred to in this subsection (f) shall be conclusive and binding for all purposes, absent manifest error. (g) Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other ~~Lender~~ Lender, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agent or any other ~~Lender~~ 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. (h) [Reserved]. (i) [Reserved]. (j) [Reserved]. (k) Each Lender hereby agrees that (x) if the Agent notifies such Lender that the Agent has determined in its sole discretion that any funds received by such Lender from the Agent or any of its Affiliates (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Payment (or a portion thereof), such Lender shall promptly, but in no event later than one (1) Business Day thereafter, return to the 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 to the date such amount is repaid to the Agent at the greater of the Federal Funds Effective Rate and a rate determined by the 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 shall not assert, and hereby waives, as to the Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the 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 Agent to any Lender under this Article VII shall be conclusive absent manifest error. Each Lender hereby further agrees that if it receives a Payment from the Agent or any of its Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly notify the Agent of such occurrence and, upon demand from the Agent, it shall promptly, but in no event later than one Business Day thereafter, return to the 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 to the date such amount is repaid to the Agent at the greater of the Federal Funds Effective Rate and a rate determined by the Agent in accordance with banking industry rules on interbank compensation from time to time in effect. Each Lender hereby authorizes the Agent to set off, net and apply any and all amounts at any time owing to such Lender under this Agreement, or otherwise payable or distributable by the Agent to such Lender from any source, against any amount due to the Agent under the immediately preceding paragraph or under the indemnification provisions of this Agreement. The parties hereto agree that an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any obligations owed by the Borrower hereunder, except, in each case, to the extent the Agent or any of its Affiliates receives funds from (or at the direction of) the Borrower in respect of any such Payment or such Payment is made with the proceeds of a payment made by (or at the direction of) the Borrower to the Agent or any of its Affiliates for the purpose of making such Payment. Each party’s obligations under this Article VII shall survive the resignation or replacement of the Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all obligations under this Agreement. (l) The Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Agent shall not (i) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (ii) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution.

Appears in 2 contracts

Sources: Term Loan Credit Agreement (Oncor Electric Delivery Co LLC), Term Loan Credit Agreement (Oncor Electric Delivery Co LLC)

The Agent. Each of the Lenders hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement to serve as ~~its~~ administrative agent under the Loan Documents, and authorizes the Administrative Agent to take such actions ~~on its behalf~~ and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The Person serving as the Administrative Agent hereunder ~~shall also be a Lender, it~~ shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~institution~~ Person and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~Level 3,~~ the Borrower or any Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent ~~hereunder~~hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary ~~powers~~power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing 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~~the Loan Documents), ~~and~~ provided that the Administrative Agent shall not ~~have any duty~~ be required to take any action that, in its opinion, could expose the Administrative Agent to liability or ~~exercise~~ be contrary to any ~~powers that would result in the incurrence by it of costs~~ Loan Document or ~~expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders~~applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇~~the Borrower, ~~the Borrower~~ any Subsidiary or any Affiliate of any of the ~~Subsidiaries of Level 3~~ foregoing that is communicated to or obtained by the ~~institution~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section ~~9.02~~9.08) or in the absence of its own gross ~~negligence~~ negligence, bad faith or ~~willful~~ wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~▇▇▇▇▇ ▇,~~ the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan ~~Document~~Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or satisfaction of any condition that expressly refers to the ~~Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification~~ matters described therein being acceptable or satisfactory to ~~it from~~ the ~~Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law~~Administrative Agent. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ signed, sent or ~~sent~~ otherwise authenticated by the proper Person (including, if applicable, a Financial Officer of such Person). The Administrative Agent also may ~~rely~~ rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper Person (including, if applicable, a Financial Officer or a Responsible Officer of such Person~~, and shall not incur any liability for relying thereon~~). The Administrative Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any determination made or action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~its~~ their duties and exercise ~~its~~ their rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs~~ this Article VIII shall apply to any such sub-agent and to the Related Parties of ~~each~~ the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, ~~with~~after consultation with the Borrower, ~~so long as no Default or~~ and in the absence of a continuing Event of ~~Default shall have occurred and be continuing~~Default, subject to the Borrower’s consent ~~of Level 3~~ (~~which consent shall~~ not to be unreasonably ~~withheld or delayed)~~ withheld), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor ~~Agent~~ Administrative Agent, which shall be ~~a Lender or~~ a 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 ~~such Lender or~~ any such bank, which, in the absence of a continuing Event of Default, shall be subject to the Borrower’s consent (not to be unreasonably withheld). Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder. The fees payable by Level 3~~ hereunder and under the ~~Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor~~other Loan Documents. After the Administrative Agent’s resignation ~~hereunder~~hereunder and under the other Loan Documents, the provisions of this Article VIII and Section ~~9.03~~ 9.05 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the ~~Agent~~ Administrative Agent, the Arrangers or any other ~~Lender~~ Lender, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the ~~Agent~~ Administrative Agent, the Arrangers or any other ~~Lender~~ Lender, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Each Lender, by delivering its signature page to this Agreement or delivering its signature page to an Assignment and Assumption pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Closing Date. Each Lender agrees (a) to reimburse the Administrative Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Total Commitment shall be terminated, the percentage it holds of the aggregate outstanding principal amount of the Loans and participations in Swingline Loans) of any expenses incurred for the benefit of the Lenders by the Administrative Agent, 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 Borrower and (b) to indemnify and hold harmless the Administrative Agent and any of its Related Parties, on demand, in the amount of such pro rata share, from and against any and all claims for 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 it in its capacity as the Administrative Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or any action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Borrower; provided that no Lender shall be liable to the Administrative Agent or any of its Related Parties for any portion of such claim for liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements to the extent that such claim is determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or wilful misconduct of the Administrative Agent or any of its Related Parties. The obligations of the Lenders under this Article VIII shall survive the payment of all amounts due under any Loan Document and the termination of this Agreement. Notwithstanding anything herein to the contrary, no Person named on the cover page of this Agreement as an Arranger shall have any duties or obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as a Lender), but all such Persons shall have the benefit of the indemnities provided for hereunder.

Appears in 2 contracts

Sources: Revolving Credit Facility Agreement (Janus Capital Group Inc), 364 Day Competitive Advance and Revolving Credit Facility Agreement (Janus Capital Group Inc)

The Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In Without limiting the ~~event~~ generality of the ~~institution~~ foregoing, the Agent shall have the sole and exclusive authority to (a) act as the disbursing and collecting agent for Lenders with respect to all payments and collections arising in connection with the Loan Documents; (b) execute and deliver as Agent each Loan Document, including any intercreditor or subordination agreement, and accept delivery of each Loan Document from any Loan Party or other Person; (c) act as collateral agent for Secured Parties for purposes of perfecting and administering Liens under the Loan Documents, and for all other purposes stated therein; (d) manage, supervise or otherwise deal with Collateral; and (e) take any enforcement action or otherwise exercise any rights or remedies with respect to any Collateral under the Loan Documents, applicable law or otherwise. The Agent alone shall be authorized to determine whether any Accounts or Inventory constitute Eligible Receivables or Eligible Inventory, or whether to impose or release any reserve, which determinations and judgments, if exercised in good faith, shall exonerate the Agent from liability to any Lender or other Person for any error in judgment. Any bank serving as ~~the~~ Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the ~~Borrower~~ Loan Parties or any ~~Subsidiary~~ subsidiary of a Loan Party or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇, the Borrower~~ any Loan Party or any of ~~the Subsidiaries of Level 3~~ its subsidiaries that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any capacity. The 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 of, or for any losses not directly and solely caused by, its own gross negligence or willful misconduct. The Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇,~~ the Borrower Agent or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~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 (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. ~~As to~~ If any ~~matters not expressly provided for by this Agreement~~ Lender acquires knowledge of a Default or Event of Default, it shall promptly notify the Agent and the other Lenders thereof in writing. Each Lender agrees that, except as otherwise provided in any Loan Documents ~~(including enforcement~~ or ~~collection),~~ with the ~~Administrative~~ written consent of the Agent and the ~~Collateral Agent shall~~ Required Lenders, it will not ~~be required to~~ take any enforcement action, accelerate the Obligations under any Loan Documents, or exercise any ~~discretion~~ right that it might otherwise have under Applicable Law to credit bid at foreclosure sales, UCC sales or ~~take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon~~ other similar dispositions of Collateral. Notwithstanding the ~~instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided~~foregoing, however, a Lender may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the ~~Administrative Agent and~~ Obligations held by such Lender, including the ~~Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent~~ filing of proofs of claim in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable lawa Bankruptcy Proceeding. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more agents, co-agents or sub-agents appointed by the Agent. The Agent and any such agents, co-agents or sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The Lenders shall execute and deliver such documents as the Agent deems appropriate to vest any rights or remedies in such agents, co-agents or sub-agent. The exculpatory provisions of the preceding paragraphs shall apply to any such agents, co-agents or sub-agent and to the Related Parties of ~~each~~ the Agent and any agents, co-agents or 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 Agent. Subject to the appointment and acceptance of a successor to the Agent as provided in this paragraph, the Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Issuing Banks and ~~Level 3~~the Borrower Agent. Upon any such resignation, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing,~~ with the consent ~~of Level 3~~ (~~which consent shall~~ not to be unreasonably withheld or delayed) of the Borrower Agent, to appoint a successor; provided that, during the existence and continuation of an Event of Default, no consent of the Borrower Agent shall be required. If no successor shall have been so appointed by the Required Lenders 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~~Lenders and the Issuing Banks, appoint a successor Agent which shall be a ~~Lender or a~~ commercial bank ~~with an office in New York, New York,~~ or an Affiliate of ~~such Lender or~~ any such ~~bank~~commercial bank reasonably acceptable to the Borrower Agent. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the ~~Borrower~~ Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrower Agent and such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 Agent. Any successor to JPMorgan Chase Bank, N.A. by merger or acquisition of stock or this loan shall continue to be the Agent hereunder without further act on the part of the parties hereto, unless such successor resigns as provided above. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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 Agent; (b) the Agent (i) does not make 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 or (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 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 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 attorneys’ fees) incurred by the 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 and any action such Lender may take as a result of or any conclusion it may draw from any such Report. The joint lead arrangers, joint bookrunners, syndication agent and co-documentation agents 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

Sources: Credit Agreement (Northern Tier Energy LP), Credit Agreement (Northern Tier Energy, Inc.)

The Agent. ~~Each~~ (a) In order to expedite the transactions contemplated by this Agreement, CSFB is hereby appointed to act as Agent on behalf of the ~~Lenders~~ Lenders. Each Lender hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such actions on ~~its~~ behalf of such Lender and to exercise such powers as are specifically delegated to the Agent by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent ~~shall not have any duties or obligations except those~~ is hereby expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made authorized by the Lenders, without hereby limiting any implied authority, (i) to receive on behalf of the Lenders and all payments of principal of and interest on the outstanding 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; (ii) to give notice on behalf of each Lender to the Borrower of any Event of Default of which the Agent has actual knowledge acquired in connection with its agency hereunder; and (ciii) ~~except~~ to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as ~~expressly set forth in~~ received by the ~~Loan Documents,~~ Agent. (b) Neither the Agent nor any of its directors, officers, employees or agents shall ~~not have any duty to disclose, and shall not~~ be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the ~~failure~~ contents of any document delivered in connection herewith, or be required to ~~disclose,~~ ascertain or to make any ~~information relating to ▇▇▇▇▇ ▇,~~ inquiry concerning the performance or observance by the Borrower or of any of the ~~Subsidiaries of Level 3 that is communicated to~~ terms, conditions, covenants or ~~obtained by the institution serving as Agent or any of its Affiliates~~ agreements contained in ~~any capacity~~this Agreement. The Agent shall not be ~~liable~~ responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agent may deem and treat the Lender that makes any ~~action taken~~ 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 Agent shall in all cases be fully protected in acting, or ~~not taken~~ refraining from acting, in accordance with written instructions signed by ~~it with the consent or at the request of~~ the Required Lenders (and, except as otherwise specifically provided herein, such instructions and any action or ~~such other number or percentage of the Lenders as~~ inaction pursuant thereto shall be ~~necessary under~~ binding on all the ~~circumstances as provided in Section 9.02) or~~ Lenders. The Agent shall, in the absence of ~~its own gross negligence or willful misconduct. The Agent shall be deemed not to have~~ knowledge ~~of any Default unless and until written notice thereof is given~~ to the ~~Agent by ▇▇▇▇▇ ▇~~contrary, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall 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. ~~The~~ Neither the Agent ~~also may rely upon~~ nor any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ the Borrower on account of the failure of or delay in performance or breach by ~~telephone and believed~~ 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 ~~it to be made by~~ any other Lender or the ~~proper Person, and shall not incur~~ Borrower of any ~~liability for relying thereon~~of their respective obligations hereunder or in connection herewith. The Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for Level 3 or the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it 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 in accordance with the advice of ~~any~~ such counsel~~, accountants or experts.~~ . (c) The Lenders hereby acknowledge that the Agent ~~may perform~~ shall not be under any ~~and all its duties and exercise its rights and powers~~ duty to take any discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Required Lenders. (d) Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the ~~right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ right to appoint a ~~successor~~successor Agent acceptable to the Borrower. If no successor shall have been so appointed by the Required Lenders 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, appoint a successor ~~Agent which shall be~~ Agent, having a ~~Lender or a bank with an office in New York, New York,~~ combined capital and surplus of at least $500,000,000 or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of ~~its~~ any appointment as Agent 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 ~~Agent,~~ Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor.~~ After the Agent’s 's resignation hereunder, the provisions of this Article and Section ~~9.03~~ 8.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by it while it was acting as the Agent. (e) The Lenders may remove the Agent upon 30 days' prior notice by so notifying the Borrower and, in such event, the Lenders shall appoint a successor Agent acceptable to the Borrower. Either the Required Lenders or the Borrower may remove any Agent if (i) such Agent is adjudged bankrupt or insolvent or (ii) a receiver or other public officer takes charge of ~~them~~ such Agent or its property. If no successor Agent shall have been appointed by the Lenders and shall have accepted such appointment within 30 days after delivery by the Lenders of the notice required by the first sentence of this paragraph (b), the Required Lenders or the Borrower may petition any court of competent jurisdiction for the appointment of a successor Agent. After the Agent's removal hereunder, the provisions of this Article and Section 8.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Agent. (f) With respect to the Loans made by it hereunder, the Agent, in its individual capacity and not as Agent, shall have the same rights and powers as any other Lender and may exercise the same as though it were not the Agent, and the Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not Agent. (g) Each Lender agrees (i) to reimburse the Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its percentage of outstanding Loans) of any expenses incurred for the benefit of the Lenders, in its role as Agent, 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 Borrower and (ii) to indemnify and hold harmless the Agent and any of its 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 it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrower; provided that no Lender shall be liable to the 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 the Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agent of expenses or other amounts referred to in this paragraph shall be conclusive and binding for all purposes. (h) Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other ~~Lender~~ Lender, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agent or any other ~~Lender~~ 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. (i) CSFB, by virtue of its designation as "Sole Lead Arranger and Bookrunner" on the cover page of this Agreement shall have no duties, liabilities, obligations or responsibilities under this Agreement other than as the Agent and a Lender hereunder.

Appears in 2 contracts

Sources: Credit Agreement (Txu Corp /Tx/), Credit Agreement (Txu Corp /Tx/)

The Agent. ~~Each~~ (a) In order to expedite the transactions contemplated by this Agreement, JPMorgan Chase is hereby appointed to act as Agent on behalf of the Lenders and the Fronting Banks. Each Lender and each Fronting Bank hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such actions on ~~its~~ behalf of such Lender and such Fronting Bank and to exercise such powers as are specifically delegated to the Agent by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. In The Agent is hereby expressly authorized by the ~~event~~ Lenders and the ~~institution serving~~ Fronting Banks, without hereby limiting any implied authority, (i) to receive on behalf of the Lenders and the Fronting Banks all payments of principal of and interest on the Outstanding Credits and all other amounts due to the Lenders and the Fronting Banks hereunder, and promptly to distribute to each Lender and each Fronting Bank, its proper share of each payment so received; (ii) to give notice on behalf of each Lender and each Fronting Bank to the Borrower of any Event of Default of which the Agent has actual knowledge acquired in connection with its agency hereunder; and (iii) to distribute to each Lender and each Fronting Bank copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by the Agent. (b) Neither the Agent nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agent shall not be responsible to the Lenders or the Fronting Banks for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agent may deem and treat the Lender or the Fronting Bank that makes any Extension of Credit as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender or such Fronting Bank, given as provided herein, of the transfer thereof. The Agent 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 and the Fronting Banks. The Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Person or Persons. Neither the Agent nor any of its directors, officers, employees or agents shall have any responsibility to the Borrower or any Subsidiary on account of the failure of or delay in performance or breach by any Lender or any Fronting Bank of any of its obligations hereunder or to any Lender or any Fronting Bank on account of the failure of or delay in performance or breach by any other Lender, any Fronting Bank or the Borrower or any Subsidiary of any of their respective obligations hereunder or in connection herewith. The Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. (c) The Lenders and the Fronting Banks hereby acknowledge that the Agent shall not be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. (d) Subject to the appointment and acceptance of a successor Agent as provided below, the Agent may resign at any time by notifying the Lenders, the Fronting Banks and the Borrower. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrower. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the Agent gives notice of its resignation, then the Agent may, on behalf of the Lenders and the Fronting Banks, appoint a successor Agent, having a combined capital and surplus of at least $5,000,000,000 (or such lower amount as shall be acceptable to the Borrower) or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor shall ~~also~~ succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the Agent shall be ~~a Lender~~discharged from its duties and obligations hereunder. After the Agent’s resignation hereunder, the provisions of this Article and Section 8.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as the Agent. (e) With respect to the Extensions of Credit made by it hereunder, JPMorgan Chase, in its individual capacity and not as Agent, shall have the same ~~rights~~ rights, obligations and powers ~~in its capacity as a Lender~~ as any other Lender and may exercise the same as though it were not the Agent, and ~~such institution~~ the Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the Borrower or any Subsidiary or other Affiliate thereof as if it were not Agent. (f) Each Lender agrees (i) to reimburse the ~~Agent hereunder. The Agent~~ Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if all of the Commitments shall have been terminated, the amount of its percentage of Outstanding Credits) of any expenses incurred for the benefit of the Lenders or the Fronting Banks, in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Fronting Banks, which shall not have been reimbursed by the Borrower (but without limiting the Borrower’s obligation to make such reimbursement) and (ii) to indemnify and hold harmless the Agent and any ~~duties~~ of its directors, officers, employees or ~~obligations except those expressly set forth~~ agents, on demand, in the ~~Loan Documents. Without limiting~~ 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 it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the ~~generality of~~ extent the ~~foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent~~ same shall not have ~~any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated~~ been reimbursed by the ~~Loan Documents~~ Borrower; provided that neither any Lender nor any Fronting Bank shall be liable to the 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 the Agent or any of its directors, officers, employees or agents. Each Lender and each Fronting Bank agrees that any allocation made in good faith by the Agent of expenses or other amounts referred to in this subsection (f) shall be conclusive and binding for all purposes, absent manifest error. (g) Each Lender acknowledges and agrees that the extensions of credit hereunder are commercial loans and letters of credit and not investments in a business enterprise or securities. Each Lender and each Fronting Bank further acknowledges that it has, independently and without reliance upon the Agent ~~is required~~ or any other Lender or Fronting Bank or any Person designated as a “Joint Lead Arranger”, a “Syndication Agent” or a “Documentation Agent” on the cover page of this Agreement, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to ~~exercise~~ enter into this Agreement. Each Lender and each Fronting Bank also acknowledges that it will, independently and without reliance upon the Agent or any other Lender or Fronting Bank or any Person designated as a “Joint Lead Arranger”, a “Syndication Agent” or a “Documentation Agent” on the cover page of this Agreement, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in ~~writing by the Required Lenders~~ taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunder. (~~or such other number or percentage~~ h) None of the ~~Lenders~~ Persons designated as a “Joint Lead Arranger”, a “Syndication Agent” or a “Documentation Agent” on the cover page of this Agreement shall ~~be necessary under the circumstances as provided in Section 9.02), and shall not~~ have any ~~duty to take any action~~ duties, liabilities, obligations or ~~exercise any powers that would result~~ responsibilities under this Agreement other than, if applicable, in ~~the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all~~ such ~~costs or expenses shall have been made by the Lenders, and~~ Person’s role as a Credit Party. (ci) ~~except~~ Except as expressly set forth ~~in the Loan Documents~~herein, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇,~~ the Borrower or any of ~~the~~ its Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any capacity~~. The 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~~j) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ▇▇▇▇▇ ▇, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for Level 3 or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~each~~ the 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 Agent~~. Subject to~~ . (k) To the ~~appointment and acceptance of a successor as provided in this paragraph~~extent required by any Applicable Law, the Agent may ~~resign at~~ withhold from any ~~time~~ payment to any Lender an amount equivalent to any applicable withholding tax. If the Internal Revenue Service or any other authority of the United States or other jurisdiction asserts a claim that the Agent did not properly withhold tax from amounts paid to or for the account of any Lender for any reason (including, without limitation, because the appropriate form was not delivered or not property executed, or because such Lender failed to notify the Agent of a change in circumstance that rendered the exemption from, or reduction of withholding tax ineffective), such Lender shall indemnify and hold harmless the Agent (to the extent that the Agent has not already been reimbursed by ~~notifying~~ the ~~Lenders~~ Borrower and ~~Level 3~~without limiting the obligation of the Borrower to do so) for all amounts paid, directly or indirectly, by the Agent as tax or otherwise, including any interest, additions to tax or penalties thereto, together with all expenses incurred, including legal expenses and any other out-of-pocket expenses, whether or not such tax were correctly or legally imposed or asserted by the relevant Government Authority. ~~Upon~~ A certificate as to the amount of such payment or liability delivered to any ~~such resignation,~~ Lender by the ~~Required Lenders~~ Agent shall ~~have the right, with, so long as no Default or Event of Default shall have occurred and~~ be ~~continuing, the consent of Level 3~~ conclusive absent manifest error. (~~which consent~~ l) The Agent shall not be ~~unreasonably withheld~~ responsible or ~~delayed)~~ have any liability for, or have any duty to ~~appoint a successor~~ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Institutions. ~~If no successor shall have been so appointed by~~ Without limiting the ~~Required Lenders 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~~ generality of the ~~Lenders~~foregoing, ~~appoint a successor~~ the Agent ~~which~~ shall not (i) be a obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a ~~bank~~ Disqualified Institution or (ii) have any liability with ~~an office in New York, New York~~respect to or arising out of any assignment or participation of Loans, or ~~an Affiliate~~ disclosure of ~~such Lender or~~ confidential information, to any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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 thereunderDisqualified Institution.

Appears in 2 contracts

Sources: Revolving Credit Agreement (Oncor Electric Delivery Co LLC), Revolving Credit Agreement (Oncor Electric Delivery Co LLC)

The Agent. Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the ~~Borrower~~ Loan Parties or any ~~Subsidiary~~ subsidiary of a Loan Party or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, ~~except~~ except, subject to the last paragraph of this Article VIII, discretionary rights and powers expressly contemplated by the Loan Documents that the 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇, the Borrower~~ any Loan Party or any of ~~the~~ its Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇,~~ the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~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 (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~each~~ the 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 Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, the Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Issuing Bank and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing,~~ with the consent ~~of Level 3~~ (~~which consent shall~~ not to be unreasonably withheld or delayed) of the Borrower, to appoint a successor; provided that (i) during the existence and continuation of an Event of Default, no consent of the Borrower shall be required and (ii) any successor that shall also be the named secured party under any Collateral Document shall also be subject to the approval requirements, if any, of such Collateral Document. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the ~~Lenders~~Lenders and the Issuing Bank, appoint a successor Agent which shall be a ~~Lender or a~~ commercial bank ~~with an office in New York, New York,~~ or an Affiliate of ~~such Lender or~~ any such ~~bank~~commercial bank reasonably acceptable to the Borrower. If no successor Agent has been appointed pursuant to the immediately preceding sentence by the 30th day after the date such notice of resignation was given by such Agent, such Agent’s resignation shall become effective and the Required Lenders shall thereafter perform all the duties of such Agent hereunder and/or under any other Loan Document until such time, if any, as the Required Lenders appoint, with the consent of the Borrower (not to be unreasonably withheld or delayed) (so long as no Event of Default exists), a successor administrative agent and/or collateral agent, as the case may be. Any such resignation by such Agent hereunder shall also constitute, to the extent applicable, its resignation as an Issuing Bank and the Swingline Lender, in which case such resigning Agent (x) shall not be required to issue any further Letters of Credit or make any additional Swingline Loans hereunder and (y) shall maintain all of its rights as Issuing Bank or Swingline Lender, as the case may be, with respect to any Letters of Credit issued by it, or Swingline Loans made by it, prior to the date of such resignation. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrower and such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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 (a) acknowledges that it has received a copy of each Collateral Documents, (b) without limiting the foregoing, agrees that it will be bound by and will take no actions contrary to the provisions of any Collateral Documents and (c) acknowledges that the Agent will, and hereby authorizes the Agent to, enter into (and be a party to) the Collateral Documents and any intercreditor agreements on behalf of itself, such Lender and the holders of any future Specified Secured Indebtedness. The Lenders further acknowledge that, pursuant to the Collateral Documents, the Agent will have the sole right to proceed against the Collateral. In the event of a foreclosure by the Agent on any of the Collateral pursuant to a public or private sale or other disposition, any Secured Party may be the purchaser of any or all of such Collateral at any such sale or other disposition, and the Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by such Secured Party. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the foregoing provisions. The provisions of this paragraph are for the sole benefit of the Lenders and shall not afford any right to, or constitute a defense available to, any Loan Party. The Joint Lead Arrangers and joint bookrunners shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Agent and each Joint Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true: (i) such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the Commitments, (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such ▇▇▇▇▇▇’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, (iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such ▇▇▇▇▇▇’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or (iv) such other representation, warranty and covenant as may be agreed in writing between the Agent, in its sole discretion, and such Lender. In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Agent and each Joint Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that: (i) none of the Agent or any Joint Lead Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Agent under this Agreement, any Loan Document or any documents related to hereto or thereto), (ii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50.0 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E), (iii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the Obligations), (iv) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, the Letters of Credit, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and (v) no fee or other compensation is being paid directly to the Agent or any Joint Lead Arranger or any their respective Affiliates for investment advice (as opposed to other services) in connection with the Loans, the Letters of Credit, the Commitments or this Agreement. The Agent and each Joint Lead Arranger hereby informs the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, Agent or collateral agent fees,

Appears in 2 contracts

Sources: Incremental Term Loan Assumption Agreement (TransDigm Group INC), Loan Modification Agreement (TransDigm Group INC)

The Agent. Each of the Lenders hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the ~~Borrower~~ Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇, the Borrower~~ any Loan Party or any of ~~the~~ its Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇,~~ the U.S. Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~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 (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the ~~Borrower~~Loan Parties), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~each~~ the 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 Agent. Each of the Lenders, the Issuers and the Loan Parties agree, that the Agent may, but shall not be obligated to, make the Approved Electronic Communications available to the Lenders, the Issuing Bank and the LC Facility Issuing Bank by posting such Approved Electronic Communications on IntraLinks™ or a substantially similar electronic platform chosen by the Agent to be its electronic transmission system (the “Approved Electronic Platform”). Although the Approved Electronic Platform and its primary web portal are secured with generally-applicable security procedures and policies implemented or modified by the Agent from time to time (including, as of the Closing Date, a dual firewall and a User ID/Password Authorization System) and the Approved Electronic Platform is secured through a single-user-per-deal authorization method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders, the Issuing Bank and the LC Facility Issuing Bank and the Loan Parties acknowledge and agree that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution. In consideration for the convenience and other benefits afforded by such distribution and for the other consideration provided hereunder, the receipt and sufficiency of which is hereby acknowledged, each of the Lenders, the Loan Parties and the Issuing Bank and the LC Facility Issuing Bank hereby approve distribution of the Approved Electronic Communications through the Approved Electronic Platform and understands and assumes the risks of such distribution. The Approved Electronic Communications and the Approved Electronic Platform are provided “as is” and “as available.” None of the Agent or any of its Affiliates or any of their respective officers, directors, employees, agents, advisors or representatives (the “Agent Affiliates”) warrant the accuracy, adequacy or completeness of the Approved Electronic Communications and the Approved Electronic Platform and each expressly disclaims liability for errors or omissions in the Approved Electronic Communications and the Approved Electronic Platform. No warranty of any kind, express, implied or statutory (including, without limitation, any warranty of merchantability, fitness for a particular purpose, noninfringement of third party rights or freedom from viruses or other code defects) is made by the Agent Affiliates in connection with the approved electronic communications or the approved electronic platform. Each of the Lenders, the Issuing Bank, the LC Facility Issuing Bank, and the Loan Parties agrees that the Agent may, but (except as may be required by applicable law) shall not be obligated to, store the Approved Electronic Communications on the Approved Electronic Platform in accordance with the Agent’s generally-applicable document retention procedures and policies. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, the Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Issuing Bank, the LC Facility Issuing Bank and ~~Level 3~~the U.S. Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing,~~ with the consent ~~of Level 3~~ (~~which consent shall~~ not to be unreasonably withheld or delayed) of the U.S. Borrower, to appoint a successor; provided that, during the existence and continuation of an Event of Default, no consent of the U.S. Borrower shall be required. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, the Issuing Bank and the LC Facility Issuing Bank appoint a successor Agent which shall be a ~~Lender or a~~ commercial bank ~~with an office in New York, New York,~~ or an Affiliate of ~~such Lender or~~ any such ~~bank~~commercial bank reasonably acceptable to the U.S. Borrower. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the ~~Borrower~~ Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrowers and such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 Agent. Any such resignation by the Agent hereunder shall, unless otherwise consented to by such Agent, also constitute the resignation of such Agent (and its Affiliates) as a Swingline Lender hereunder (in which case the U.S. Borrower may appoint a replacement Swingline Lender reasonably acceptable to the new Agent). Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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. The co-arrangers, joint bookrunners, co-syndication agents and the co-documentation agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Each Lender authorizes and directs the Agent to, upon the request of the U.S. Borrower, enter into any Receivables Facility Intercreditor Agreement with any agent under any Receivables Facility of the U.S. Borrower or any of its Restricted Subsidiaries and each Lender agrees to be bound by the terms thereof that are applicable to it thereunder. For the purpose of taking and ensuring the continuing validity of certain of the security under the Collateral Documents, each of the Loan Parties hereby agrees and covenants with the Agent by way of an abstract acknowledgement of debt (abstraktes Schuldanerkenntnis) that each of them shall pay to the Agent sums equal to, and in the currency of, any sums owing by it to a Secured Party (other than the Agent) under any Loan Document (the “Principal Domestic Obligations”) as and when the same fall due for payment under the relevant Loan Document (the “Parallel Domestic Obligations”).

Appears in 2 contracts

Sources: Amendment Agreement (Aramark Corp), Credit Agreement (Aramark Corp)

The Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In Without limiting the ~~event~~ generality of the ~~institution~~ foregoing, the Agent shall have the sole and exclusive authority to (a) act as the disbursing and collecting agent for Lenders with respect to all payments and collections arising in connection with the Loan Documents, including, with respect to the Canadian Loan Parties, the Agent acting through its Canada branch; (b) execute and deliver as Agent each Loan Document, including any intercreditor or subordination agreement, and accept delivery of each Loan Document from any Loan Party or other Person; (c) act as collateral agent for Secured Parties for purposes of perfecting and administering Liens under the Loan Documents, and for all other purposes stated therein; (d) manage, supervise or otherwise deal with Collateral; and (e) take any enforcement action or otherwise exercise any rights or remedies with respect to any Collateral under the Loan Documents, applicable law or otherwise. The Agent alone shall be authorized to determine whether any Accounts or Inventory constitute Eligible Receivables or Eligible Inventory, or whether to impose or release any Reserve, which determinations and judgments, if exercised in good faith, shall exonerate the Agent from liability to any Lender or other Person for any error in judgment. Any bank serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the ~~Borrower~~ Loan Parties or any ~~Subsidiary~~ subsidiary of a Loan Party or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇, the Borrower~~ any Loan Party or any of ~~the Subsidiaries of Level 3~~ its subsidiaries that is communicated to or obtained by the ~~institution~~ bank serving as the Agent or any of its Affiliates in any capacity. The 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 of, or for any losses not directly and solely caused by, its own gross negligence or willful misconduct. The Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇,~~ the Borrower Agent or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~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 (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. ~~As to~~ If any ~~matters not expressly provided for by this Agreement~~ Lender acquires knowledge of a Default or Event of Default, it shall promptly notify the Agent and the other Lenders thereof in writing. Each Lender agrees that, except as otherwise provided in any Loan Documents ~~(including enforcement~~ or ~~collection),~~ with the ~~Administrative~~ written consent of the Agent and the ~~Collateral Agent shall~~ Required Lenders, it will not ~~be required to~~ take any enforcement action, accelerate the Obligations under any Loan Documents, or exercise any ~~discretion~~ right that it might otherwise have under Applicable Law to credit bid at foreclosure sales, UCC sales or ~~take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon~~ other similar dispositions of Collateral. Notwithstanding the ~~instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided~~foregoing, however, a Lender may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the ~~Administrative Agent and~~ Obligations held by such Lender, including the ~~Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent~~ filing of proofs of claim in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable lawa Bankruptcy Proceeding. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more agents, co-agents or sub-agents appointed by the Agent. The Agent and any such agents, co-agents or sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The Lenders shall execute and deliver such documents as the Agent deems appropriate to vest any rights or remedies in such agents, co-agents or sub-agent. The exculpatory provisions of the preceding paragraphs shall apply to any such agents, co-agents or sub-agent and to the Related Parties of ~~each~~ the Agent and any agents, co-agents or 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 Agent. Subject to the appointment and acceptance of a successor to the Agent as provided in this paragraph, the Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Issuing Banks and ~~Level 3~~the Borrower Agent. Upon any such resignation, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing,~~ with the consent ~~of Level 3~~ (~~which consent shall~~ not to be unreasonably withheld or delayed) of the Company, to appoint a successor; provided that, during the existence and continuation of an Event of Default, no consent of the Company shall be required. If no successor shall have been so appointed by the Required Lenders 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~~Lenders and the Issuing Banks, appoint a successor Agent which shall be a ~~Lender or a~~ commercial bank ~~with an office in New York, New York,~~ or an Affiliate of ~~such Lender or~~ any such ~~bank~~commercial bank reasonably acceptable to the Company. Upon the acceptance of its appointment as the Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the ~~Borrower~~ Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Company and such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Agent, its sub-~~agents~~ agents, branches and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as the Agent. Any successor to BANA by merger or acquisition of stock or this loan shall continue to be the Agent hereunder without further act on the part of the parties hereto, unless such successor resigns as provided above. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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 Agent; (b) the Agent (i) does not make 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 or (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 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 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 attorneys’ fees) incurred by the 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 and any action such Lender may take as a result of or any conclusion it may draw from any such Report. For the purposes of creating a solidarité active in accordance with Article 1541 of the Civil Code of Quebec between each Secured Party, taken individually, on the one hand, and the Agent, on the other hand, each Loan Party and each such Secured Party acknowledge and agree with the Agent that such Secured Party and the Agent are hereby conferred the legal status of solidary creditors of each such Loan Party in respect of all Obligations owed by each such Loan Party to the Agent and such Secured Party hereunder and under the other Loan Documents (collectively, the “Solidary Claim”) and that, accordingly, but subject (for the avoidance of doubt) to Article 1542 of the Civil Code of Quebec, each such Loan Party is irrevocably bound towards the Agent and each Secured Party in respect of the entire Solidary Claim of the Agent and such Secured Party. As a result of the foregoing, the parties hereto acknowledge that the Agent and each Secured Party shall at all times have a valid and effective right of action for the entire Solidary Claim of the Agent and such Secured Party and the right to give full acquittance for it. Accordingly, and without limiting the generality of the foregoing, the Agent, as solidary creditor with each Secured Party, shall at all times have a valid and effective right of action in respect of the Solidary Claim and the right to give a full acquittance for same. By its execution of the Loan Documents to which it is a party, each such Loan Party not a party hereto shall also be deemed to have accepted the stipulations hereinabove provided. The parties further agree and acknowledge that such Liens (hypothecs) under the Collateral Documents and the other Loan Documents shall be granted to the Agent, for its own benefit and for the benefit of the applicable Secured Parties, as solidary creditor as hereinabove set forth.

Appears in 2 contracts

Sources: Credit Agreement (ATD Corp), Credit Agreement (American Tire Distributors Holdings, Inc.)

The Agent. Each of the Lenders hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇~~the Ultimate Parent, the Parent, the Borrower or any of ~~the~~ its Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any ~~capacity~~capacity (other than as Agent). The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇,~~ the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor to the Agent as provided in this paragraph, the Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing,~~ with the consent of ~~Level 3~~ the Borrower (~~which~~ such consent ~~shall~~ not to be unreasonably withheld or ~~delayed~~delayed and such consent not to be required if an Event of Default under clause (a), (b), (i) or (j) of Article VII has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a ~~Lender or a~~ bank with an office in New York, New York, or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of its appointment as Agent and Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrower and such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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. The Arrangers and Syndication Agent shall be entitled to the benefits of this Article VIII.

Appears in 2 contracts

Sources: Credit Agreement (Dex Media, Inc.), Credit Agreement (Dex Media, Inc.)

The Agent. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent on behalf of the Lenders. Each of the Lenders hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ Any bank serving as the Administrative Agent hereunder ~~shall also be a Lender, it~~ shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if it were not ~~the~~ such Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, the Administrative Agent (a) ~~the Agent~~ shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Agent~~ shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, ~~the Agent~~ shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇,~~ the ~~Borrower~~ Company or any ~~of the Subsidiaries of Level 3~~ Subsidiary that is communicated to or obtained by the ~~institution~~ bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own bad faith, gross negligence or ~~willful~~ wilful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~▇▇▇▇▇ ▇,~~ the ~~Borrower~~ Company or a Lender, ~~and the Agent~~ shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. ~~As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the~~ The Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the ~~Borrower~~Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 9.03 shall apply to any such sub-agent and to the Related Parties of ~~each~~ the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Company. Upon any such resignation, the Required Lenders shall have the ~~right,~~ right (in consultation with, ~~so long as no Default or Event of Default shall have occurred~~ and ~~be continuing~~with the consent of, the ~~consent of Level 3 (~~Company, which ~~consent~~ shall not be unreasonably ~~withheld or delayed~~withheld) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent ~~may~~may (in consultation with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII), with the consent of the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Administrative Agent shall so request, designate and approve a successor Administrative Agent) on behalf of the Lenders, appoint a successor Administrative Agent which shall be ~~a Lender or~~ a bank with an office in New York, New York, or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the ~~Borrower~~ Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Company and such successor. After ~~the~~ an Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan ~~Document or~~ Document, any related agreement or any document furnished hereunder or thereunder. The institutions named as Syndication Agent in the heading of this Agreement shall not, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.

Appears in 2 contracts

Sources: 364 Day Credit Agreement (Kellogg Co), 364 Day Credit Agreement (Kellogg Co)

The Agent. Each of the Lenders (including in its capacity as a potential counterparty under a Secured Swap Agreement), Secured Party and Issuing Bank hereby irrevocably appoints ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. as the Administrative Agent ~~as its agent~~ and Collateral Agent (and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. hereby accepts such appointment) and authorizes the Administrative Agent and the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent and the Collateral Agent by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. In Except, in each case, as set forth in the ~~event~~ sixth paragraph of this Article, the ~~institution~~ provisions of this Article are solely for the benefit of the Agent and the Lenders, and the Borrower shall not have rights as a third party beneficiary of any of such provisions. The Person serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 ~~Agent~~Agent and the term “Lender” or “Lenders” shall, ~~and such institution~~ unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Agent ~~hereunder~~hereunder and without any duty to account therefor to the Lenders. The Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, the Agent: (a) ~~the Agent~~ shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Agent~~ shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~10.2 or in the other Loan Documents)~~, and~~ ; provided that the Agent shall not ~~have any duty~~ be required to take any action that, in its opinion or ~~exercise~~ the opinion of its counsel, may expose the Agent to liability or that is contrary to any ~~powers~~ Loan Document or applicable law, including for the avoidance of doubt any action that ~~would result~~ may be in violation of the ~~incurrence by it~~ automatic stay under any Debtor Relief Law or that may affect a forfeiture, modification or termination of ~~costs or expenses unless arrangements satisfactory to it to ensure the prompt payment~~ property of ~~all such costs or expenses shall have been made by the Lenders~~a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, ~~the Agent shall not~~ have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇,~~ the Borrower or any of ~~the Subsidiaries of Level 3~~ its Affiliates that is communicated to or obtained by the ~~institution~~ Person serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~10.2) or (ii) in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇,~~ the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in herein or the occurrence of any ~~Loan Document~~Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, that by its terms must be fulfilled to the satisfaction of a Lender, the Agent may presume that such condition is satisfactory to such Lender unless the Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~each~~ the 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 Agent. ~~Subject~~ The Administrative Agent shall have the right to ~~the appointment and acceptance of a successor as provided in this paragraph, the Agent may~~ resign at any time by ~~notifying~~ giving prior written notice thereof to the Lenders and ~~Level 3~~the Borrower. The Administrative Agent shall have the right to appoint a financial institution to act as the Administrative Agent and/or the Collateral Agent hereunder, subject to the reasonable satisfaction of the Borrower and the Required Lenders, and the Administrative Agent’s resignation shall become effective on the earliest of (i) 30 days after delivery of the notice of resignation, (ii) the acceptance of such successor Administrative Agent by the Borrower and the Required Lenders or (iii) such other date, if any, agreed to by the Borrower and the Required Lenders. Upon any such notice of resignation, if a successor Administrative Agent has not already been appointed by the retiring Administrative Agent, the Required Lenders shall have the right, ~~with~~in consultation with the Borrower, ~~so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ to appoint a ~~successor~~successor Administrative Agent. If no neither the Required Lenders nor the Administrative Agent have appointed a successor Administrative Agent, the Required Lenders shall be deemed to have ~~been~~ succeeded to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent; provided that, until a successor Administrative Agent is so appointed by the Required Lenders ~~and shall have accepted such appointment within 30 days after~~ or the ~~retiring~~ Administrative Agent, any collateral security held by the Administrative Agent ~~gives notice of~~ in its ~~resignation, then~~ role as the ~~retiring~~ Collateral Agent ~~may,~~ on behalf of the ~~Lenders, appoint~~ Lenders and Issuing Bank under any of the Loan Documents shall continue to be held by the retiring Collateral Agent as nominee until such time as a successor Collateral Agent ~~which~~ is appointed. Any successor Administrative Agent shall be ~~a Lender or~~ a bank with an office in ~~New York, New York,~~ the United States or an Affiliate of ~~such Lender or~~ any such ~~bank~~bank with an office in the United States. Upon the acceptance of ~~its~~ any appointment as Administrative Agent hereunder by a ~~successor~~successor Administrative Agent, ~~such~~ that successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Agent,~~ or removed Administrative Agent and the retiring or removed Administrative Agent shall promptly (x) transfer to such successor Administrative Agent all sums, securities and other items of Collateral held under the Collateral Documents, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Administrative Agent under the Loan Documents, and (y) execute and deliver to such successor Administrative Agent such amendments to financing statements, and take such other actions, as may be necessary or appropriate in connection with the assignment to such successor Administrative Agent of the security interests created under the Collateral Documents, whereupon such retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by Level 3 and~~ Except as provided above, any resignation of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. or its successor as the ~~Borrower~~ Administrative Agent pursuant to a this Article shall also constitute the resignation of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. or its successor ~~Agent shall be~~ as the ~~same as those payable to its predecessor unless otherwise agreed with such successor~~Collateral Agent. After ~~the~~ any retiring Administrative Agent’s resignation ~~hereunder~~hereunder as Administrative Agent, the provisions of this Article ~~and Section 9.03~~ IX shall ~~continue in effect for the~~ inure to its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties in respect of~~ as to any actions taken or omitted to be taken by ~~any of them~~ it while it was ~~acting~~ Administrative Agent hereunder. Any successor Administrative Agent appointed pursuant to this Article IX shall, upon its acceptance of such appointment, become the successor Collateral Agent for all purposes hereunder. In addition to the foregoing, the Collateral Agent may resign at any time by giving prior written notice thereof to the Lenders and the Grantors. The Administrative Agent shall have the right to appoint a financial institution as the Collateral Agent hereunder, subject to the reasonable satisfaction of the Borrower and the Required Lenders and the Collateral Agent’s resignation shall become effective on the earliest of (i) 30 days after delivery of the notice of resignation, (ii) the acceptance of such successor Collateral Agent by the Borrower and the Required Lenders or (iii) such other date, if any, agreed to by the Required Lenders and the Borrower. Upon any such notice of resignation, the Required Lenders shall have the right, upon five Business Days’ notice to the Administrative Agent and in consultation with the Borrower, to appoint a successor Collateral Agent. Until a successor Collateral Agent is so appointed by the Required Lenders or the Administrative Agent, any collateral security held by the Collateral Agent on behalf of the Lenders and Issuing Bank under any of the Loan Documents shall continue to be held by the retiring Collateral Agent as nominee until such time as a successor Collateral Agent is appointed. Upon the acceptance of any appointment as the Collateral Agent hereunder by a successor Collateral Agent, that successor Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent under this Agreement and the Collateral Documents, and the retiring Collateral Agent under this Agreement shall promptly (x) transfer to such successor Collateral Agent all sums, securities and other items of Collateral held hereunder or under the Collateral Documents, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Collateral Agent under this Agreement and the Collateral Documents, and (y) execute and deliver to such successor Collateral Agent or otherwise authorize the filing of such amendments to financing statements, and take such other actions, as may be necessary or appropriate in connection with the assignment to such successor Collateral Agent of the security interests created under the Collateral Documents, whereupon such retiring Collateral Agent shall be discharged from its duties and obligations under this Agreement and the Collateral Documents. After any retiring Collateral Agent’s resignation or removal hereunder as the Collateral Agent, the provisions of this Agreement and the Collateral Documents shall inure to its benefit as to any actions taken or omitted to be taken by it under this Agreement or the Collateral Documents while it was the Collateral Agent hereunder. Any resignation of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. or its successor as the Administrative Agent pursuant to this Article IX shall also constitute the resignation of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank, N.A. or its successor as Swing Line Lender, and any successor Administrative Agent appointed pursuant to this Section shall, upon its acceptance of such appointment, become the successor Swing Line Lender for all purposes hereunder. In such event (i) the Borrower shall prepay any outstanding Swing Line Loans made by the retiring or removed Administrative Agent in its capacity as Swing Line Lender, (ii) upon such prepayment, the retiring or removed Administrative Agent and Swing Line Lender shall surrender any Swing Line Note held by it to the Borrower for cancellation, and (iii) the Borrower shall issue, if so requested by successor Administrative Agent and Swing Line Lender, a new Swing Line Note to the successor Administrative Agent and Swing Line Lender, in the principal amount of the Swing Line Loan Sublimit then in effect and with other appropriate insertions. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.. Anything herein to the contrary notwithstanding, none of the Joint Bookrunners or Co-Syndication Agents shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Agent or a Lender hereunder. Each Secured Party hereby authorizes the Administrative Agent or the Collateral Agent, as applicable, on behalf of and for the benefit of the Secured Parties, to be the agent for and representative of the Secured Parties with respect to the Guaranty, the Collateral and the Collateral Documents; provided that neither the Administrative Agent nor the Collateral Agent shall owe any fiduciary duty, duty of loyalty, duty of care, duty of disclosure or any other obligation whatsoever to any holder of Obligations with respect to any Secured Swap Agreement. Subject to Section 10.2, without further written consent or authorization from any Secured Party, the Administrative Agent or the Collateral Agent, as applicable, may execute any documents or instruments necessary to (i) in connection with a sale or disposition of assets permitted by this Agreement, release any Lien encumbering any item of Collateral that is the subject of such sale or other disposition of assets or to which Required Lenders (or such other Lenders as may be required to give such consent under Section 10.2) have otherwise consented or (ii) release any Guarantor from the Guaranty pursuant to Section 10.17 or with respect to which Required Lenders (or such other Lenders as may be required to give such consent under Section 10.2) have otherwise consented. Anything contained in any of the Loan Documents to the contrary notwithstanding, the Borrower, the Administrative Agent, the Collateral Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies

Appears in 2 contracts

Sources: Revolving Credit and Guaranty Agreement (Fitbit Inc), Revolving Credit and Guaranty Agreement (Fitbit Inc)

The Agent. Each of the Lenders hereby irrevocably appoints the Agent (together with its Affiliates and branches) as its agent and authorizes the Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution serving as the~~ The Agent ~~hereunder shall also be a Lender, it~~ 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 Agent, and ~~such institution~~ the Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the ~~Borrower~~ Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a holder of Secured Hedging Obligations and Secured Cash Management, as “collateral agent”) and any co-agents, sub-agents and attorneys-in-fact appointed by the Agent for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Agent, shall be entitled to the benefits of all provisions of this Article VIII and Article IX (as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇, the Borrower~~ any Loan Party or any of ~~the~~ its Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any capacity. The 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~~misconduct as determined by a court of competent jurisdiction by a final and nonappealable judgment. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇,~~ the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~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 value or sufficiency of the Collateral or the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the ~~Borrower~~Loan Parties), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~each~~ the 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 Agent. Each of the Lenders and the Loan Parties agree that the Agent may, but shall not be obligated to, make the Approved Electronic Communications available to the Lenders by posting such Approved Electronic Communications on IntraLinks™ or a substantially similar electronic platform chosen by the Agent to be its electronic transmission system (the “Approved Electronic Platform”). Although the Approved Electronic Platform and its primary web portal are secured with generally-applicable security procedures and policies implemented or modified by the Agent from time to time (including, as of the Closing Date, a dual firewall and a User ID/Password Authorization System) and the Approved Electronic Platform is secured through a single-user-per-deal authorization method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders and the Loan Parties acknowledge and agree that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution. In consideration for the convenience and other benefits afforded by such distribution and for the other consideration provided hereunder, the receipt and sufficiency of which is hereby acknowledged, each of the Lenders and the Loan Parties hereby approves distribution of the Approved Electronic Communications through the Approved Electronic Platform and understands and assumes the risks of such distribution. The Approved Electronic Communications and the Approved Electronic Platform are provided “as is” and “as available”. None of the Agent or any of its Affiliates or any of their respective officers, directors, employees, agents, advisors or representatives (the “Agent Affiliates”) warrant the accuracy, adequacy or completeness of the Approved Electronic Communications and the Approved Electronic Platform and each expressly disclaims liability for errors or omissions in the Approved Electronic Communications and the Approved Electronic Platform. No warranty of any kind, express, implied or statutory (including, without limitation, any warranty of merchantability, fitness for a particular purpose, noninfringement of third party rights or freedom from viruses or other code defects) is made by the Agent Affiliates in connection with the approved electronic communications or the approved electronic platform. Each of the Lenders and the Loan Parties agrees that the Agent may, but (except as may be required by applicable law) shall not be obligated to, store the Approved Electronic Communications on the Approved Electronic Platform in accordance with the Agent’s generally-applicable document retention procedures and policies. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, the Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing,~~ with the consent ~~of Level 3~~ (~~which consent shall~~ not to be unreasonably withheld or delayed) of the Borrower, to appoint a successor; provided that, during the existence and continuation of an Event of Default, no consent of the Borrower shall be required. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Agent gives notice of its resignation, then the retiring Agent ~~may,~~ may on behalf of the ~~Lenders,~~ Lenders appoint a successor Agent which shall be a ~~Lender or a~~ commercial bank ~~with an office in New York, New York,~~ or an Affiliate of ~~such Lender or~~ any such ~~bank~~commercial bank reasonably acceptable to the Borrower. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrower and such successor. After the Agent’s resignation hereunder, the provisions of this Article VIII and Section 9.03 shall continue in effect for the benefit of such retiring 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 Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent, any Joint Lead Arranger, any Co-Manager, the Documentation Agent, the Syndication Agent or any other Lender or a Related Party 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 also acknowledges that it will, independently and without reliance upon the Agent, any Joint Lead Arranger, any Co-Manager, the Documentation Agent, the Syndication Agent or any other Lender or a Related Party 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 related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers, the Co-Managers, the Documentation Agent and the Syndication Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Each Lender authorizes and directs the Agent to, upon the request of the Borrower, enter into any intercreditor agreement with any agent under any Receivables Facility of the Borrower or any of the Restricted Subsidiaries and each Lender agrees to be bound by the terms thereof that are applicable to it thereunder.

Appears in 2 contracts

Sources: Incremental Facility Amendment (Clean Harbors Inc), Credit Agreement (Clean Harbors Inc)

The Agent. In order to expedite the transactions contemplated by this Agreement, The Chase Manhattan Bank is hereby appointed to act as U.S. Agent, and Chase Securities Australia Limited is hereby appointed to act as Australian Agent, in each case on behalf of the Lenders. Each of the Lenders and each assignee of any such Lender hereby irrevocably ~~appoints~~ authorizes each of the ~~Agent as its agent and authorizes the Agent~~ Agents to take such actions on ~~its~~ behalf of such Lender or assignee and to exercise such powers as are specifically delegated to ~~the~~ such Agent by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. In The Agents are hereby expressly authorized by the ~~event the institution serving as the Agent hereunder shall also be a Lender~~Lenders, ~~it shall have the same rights and powers in its capacity as a Lender as~~ without hereby limiting any other Lender and may exercise the same as though it were not the Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoingimplied authority, (a) to receive on behalf of the ~~Agent shall not 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) ~~the 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 Agent is required to exercise in writing by the Required Lenders (or such other number or percentage give notice on behalf of each of the Lenders ~~as shall be necessary under~~ to the ~~circumstances as provided~~ relevant Borrower of any Event of Default specified in ~~Section 9.02), and shall not have any duty to take any action or exercise any powers that would result~~ this Agreement of which the applicable Agent has actual knowledge acquired in ~~the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders,~~ 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~~ received by such Agent. None of the ~~Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ▇▇▇▇▇ ▇, the Borrower~~ Agents or any of ~~the Subsidiaries of Level 3 that is communicated to~~ their directors, officers, employees or ~~obtained by the institution serving as Agent or any of its Affiliates in any capacity. The Agent~~ agents shall ~~not~~ 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 (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~~ his own gross negligence or ~~willful~~ wilful misconduct~~. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ▇▇▇▇▇ ▇~~, ~~the Borrower~~ or ~~a Lender, and the Agent shall not~~ be responsible for ~~or have any duty to ascertain or inquire into (i)~~ any statement, warranty or representation ~~made in~~ herein or ~~in connection with any Loan Document, (ii)~~ the contents of any ~~certificate, report or other~~ document delivered ~~thereunder or~~ in connection ~~therewith~~herewith, ~~(iii)~~ or be required to ascertain or to make any inquiry concerning the performance or observance by any Borrower of any of the ~~covenants~~terms, conditions, covenants or agreements contained herein. Neither of the Agents shall be responsible to the Lenders or any assignee thereof for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other ~~terms~~ instruments 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 satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agentagreements. ~~As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral~~ Each Agent shall ~~not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall~~ in all cases be fully protected in ~~so acting~~ acting, or refraining from acting~~) upon~~ , in accordance with written instructions signed by the ~~instructions of the Requisite Lenders~~Required Lenders and, ~~and~~ except as otherwise specifically provided herein, such instructions and any action or inaction pursuant hereto shall be binding ~~upon~~ on all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders ~~with respect~~ and each assignee of any such Lender. Each Agent shall, in the absence of knowledge to ~~such action or (ii) is contrary to this Agreement or applicable law. The Agent shall~~ 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. ~~The~~ None of the Agents or any of their directors, officers, employees or agents shall have any responsibility to any Borrower 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. Each Agent ~~also~~ may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon ~~any statement made to it orally or by telephone and believed~~ the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for Level 3 or the Borrower), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or ~~not taken~~ suffered in good faith by it in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. The Lenders hereby acknowledge that neither Agent ~~may perform~~ shall be under any ~~and all its duties and exercise its rights and powers~~ duty to take any discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, ~~the~~ an Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Borrowers. Upon any such resignation, the Required Lenders shall have the ~~right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ right to appoint a successor; provided, however, that Alcoa has approved such successor (such consent not to be unreasonably withheld). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor ~~Agent~~ Agent, subject to the prior approval of Alcoa (such consent not to be unreasonably withheld), which shall ~~be a Lender or~~ be, in the case of the retirement of the U.S. Agent, a bank with an office in New York, New York, having total assets in excess of $10,000,000,000 or an Affiliate of any such ~~Lender~~ bank and shall be, in the case of the retirement of the Australian Agent, a bank with an office in Sydney, Australia, or Melbourne, Australia, having total assets in excess of $10,000,000,000 or its equivalent in another currency or an Affiliate of any such bank. Upon the acceptance of ~~its~~ any appointment as an Agent 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 ~~Agent,~~ Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor.~~ After the Agent’s 's resignation ~~hereunder,~~ hereunder the provisions of this Article and Section ~~9.03~~ 10.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Agent. With respect to the Loans made by it hereunder, an Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and such Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Borrower or any Subsidiary or other Affiliate of Alcoa or Alcoa of Australia as if it were not an Agent. Each Lender agrees (i) to reimburse each Agent, on demand, in the amount of its pro rata share (based on its Commitments hereunder) of any expenses incurred for the benefit of the Lenders by such Agent, 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 each Agent and any of its directors, officers, employees, agents or Affiliates, 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 it in its capacity as an Agent or any of them in any way relating to or arising out of this Agreement or any action taken or omitted by it or 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 an 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 Agent or any of its directors, officers, employees, agents or Affiliates. Each Lender acknowledges that it has, independently and without reliance upon ~~the~~ any Agent or ~~any~~ other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon ~~the~~ any 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.

Appears in 2 contracts

Sources: Revolving Credit Agreement (Aluminum Co of America), Revolving Credit Agreement (Aluminum Co of America)

The Agent. Each of the ~~Lenders~~ Banks hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Agent hereunder ~~shall also be a Lender, it~~ shall have the same rights and powers in its capacity as a ~~Lender~~ Bank as any other ~~Lender~~ Bank and may exercise the same as though it were not the Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the ~~Borrower~~ Parent or any Subsidiary or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that the Agent is required to exercise in writing as directed by the ~~Required Lenders~~ Majority Banks (or such other number or percentage of the ~~Lenders~~ Banks as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, 13.18) and (c) except as expressly set forth ~~in the Loan Documents~~herein, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇,~~ the ~~Borrower~~ Parent or any of ~~the Subsidiaries of Level 3~~ its subsidiaries that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any capacity. The 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~~ Majority Banks (or such other number or percentage of the ~~Lenders~~ Banks as shall be necessary under the circumstances as provided in Section ~~9.02~~13.18) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇~~the Parent, the Borrower or a ~~Lender~~Bank, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document~~this Agreement, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in ~~Article IV~~ Section 8 or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the Parent and/or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~each~~ the 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 Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, the Agent may resign at any time by notifying the ~~Lenders~~ Banks and ~~Level 3~~the Borrower. Upon any such resignation, the ~~Required Lenders~~ Majority Banks shall have the right, ~~with~~in consultation with the Borrower, ~~so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ to appoint a successor. If no successor shall have been so appointed by the ~~Required Lenders~~ Majority Banks 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,~~ Banks appoint a successor Agent which shall be a ~~Lender or a~~ bank with an office in ~~New York~~Toronto, ~~New York~~Canada, or an Affiliate of ~~such Lender or~~ any such bank. Upon ~~the~~ acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrower and such successor. After the Agent’s 's resignation hereunder, the provisions of this Article and Section ~~9.03~~ 13.12 shall continue in effect for the benefit of such retiring 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 Agent. Each ~~Lender~~ Bank acknowledges that it has, independently and without reliance upon the Agent or any other ~~Lender~~ Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each ~~Lender~~ Bank also acknowledges that it will, independently and without reliance upon the Agent or any other ~~Lender~~ Bank and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. The Sole Bookrunner, Co-Lead Arrangers and Co-Syndication Agents, in such capacities, shall have no duties or responsibilities, and shall incur no obligations or liabilities, under this Agreement. Each Bank acknowledges that it has not relied, and will not rely, on the Sole Bookrunner, any Co-Lead Arranger or Co-Syndication Agent in deciding to enter into this Agreement.

Appears in 1 contract

Sources: Term Credit Agreement (Mens Wearhouse Inc)

The Agent. Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents and the Finance Documents, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Agent hereunder. It is understood that no Syndication Agent shall have any duties or obligations under this Agreement (other than in its capacity as a Lender). The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents and the Finance Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents and the Finance Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents and the Finance Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ▇▇▇▇▇ ▇, the ~~Borrower~~ Borrowers or any of the Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. The Agent shall not be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ▇▇▇▇▇ ▇, ~~the~~ a Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document or Finance Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or Finance Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document or Finance Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for Level 3 or the ~~Borrower~~Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor the Agent as provided in this paragraph, the Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Issuing Bank and Level 3. Upon any such resignation, the Required Lenders shall have the right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the ~~Lenders~~Lenders and the Issuing Bank, appoint a successor Agent which shall be ~~a Lender or~~ a bank with an office in New York, New York, or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by Level 3 and the ~~Borrower~~ Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor. After the Agent’s 's resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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 Finance Document or related agreement or any document furnished hereunder or thereunder.

Appears in 1 contract

Sources: Amendment and Restatement Agreement (Level 3 Communications Inc)

The Agent. Each of the Lenders and the Issuing Bank hereby irrevocably appoints ~~the~~ JPMorgan Chase Bank, N.A. as Administrative Agent ~~as its agent~~ and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Administrative Agent hereunder ~~shall also be a Lender, it~~ shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3~~Holdings, the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇~~Holdings, the Borrower or any of ~~the~~ its Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~▇▇▇▇▇ ▇~~Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. ~~As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the~~ The Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Issuing Bank and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with~~in consultation with the Borrower, ~~so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders~~Lenders and the Issuing Bank, appoint a successor Administrative Agent which shall be ~~a Lender or~~ a bank with an office in New York, New York, or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.

Appears in 1 contract

Sources: Credit Agreement (American Media Operations Inc)

The Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the Agent and the Co-Collateral Agent (each, an “Appointed Agent”) as its agent and authorizes ~~the~~ each Appointed Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to ~~the~~ each Appointed Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In Without limiting the ~~event~~ generality of the ~~institution~~ foregoing, the Agent shall have the sole and exclusive authority to (a) act as the disbursing and collecting agent for Lenders with respect to all payments and collections arising in connection with the Loan Documents; (b) execute and deliver as agent each Loan Document, including any intercreditor or subordination agreement, and accept delivery of each Loan Document from any Loan Party or other Person; (c) act as collateral agent for Secured Parties for purposes of perfecting and administering Liens under the Loan Documents, and for all other purposes stated therein; (d) together with the Co-Collateral Agent, manage, supervise or otherwise deal with Collateral; and (e) take any enforcement action or otherwise exercise any rights or remedies with respect to any Collateral under the Loan Documents, Applicable Law or otherwise. The Appointed Agents alone shall be authorized to determine whether any Accounts or Inventory constitute Eligible Receivables or Eligible Inventory, or whether to impose or release any reserve, which determinations and judgments, if exercised in good faith, shall exonerate each Appointed Agent from liability to any Lender or other Person for any error in judgment. Any bank serving as ~~the~~ an Appointed Agent hereunder ~~shall also be a Lender, it~~ 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~~ an Appointed Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the ~~Borrower~~ Loan Parties or any ~~Subsidiary~~ subsidiary of a Loan Party or other Affiliate thereof as if it were not the Agent hereunder. For the purposes of creating a solidarité active in accordance with Article 1541 of the Civil Code of Québec between each Secured Party, taken individually, on the one hand, and the Agent, on the other hand, each Loan Party and each such Secured Party acknowledge and agree with the Agent that such Secured Party and the Agent are hereby conferred the legal status of solidary creditors of each such Loan Party in respect of all Obligations owed by each such Loan Party to the Agent and such Secured Party hereunder and under the other Loan Documents (collectively, the “Solidary Claim”) and that, accordingly, but subject (for the avoidance of doubt) to Article 1542 of the Civil Code of Québec, each such Obligor is irrevocably bound towards the Agent and each Secured Party in respect of the entire Solidary Claim of the Agent and such Secured Party. As a result of the foregoing, the parties hereto acknowledge that the Agent and each Secured Party shall at all times have a valid and effective right of action for the entire Solidary Claim of the Agent and such Secured Party and the right to give full acquittance for it. Accordingly, and without limiting the generality of the foregoing, the Agent, as solidary creditor with each Secured Party, shall at all times have a valid and effective right of action in respect of the Solidary Claim and the right to give a full acquittance for same. By its execution of the Loan Documents to which it is a party, each such Loan Party not a party hereto shall also be deemed to have accepted the stipulations hereinabove provided. The parties further agree and acknowledge that such Liens (hypothecs) under the Collateral Documents and the other Loan Documents shall be granted to the Agent, for its own benefit and for the benefit of the Secured Parties, as solidary creditor as hereinabove set forth. No Appointed Agent shall ~~not~~ have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) ~~the~~ no Appointed Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the~~ no Appointed 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~~ such Appointed 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, ~~the~~ no Appointed Agent shall ~~not~~ have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇, the Borrower~~ any Loan Party or any of ~~the Subsidiaries of Level 3~~ its subsidiaries that is communicated to or obtained by the ~~institution~~ bank serving as an Appointed Agent or any of its Affiliates in any capacity. ~~The~~ No Appointed 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 of, or for any losses not directly and solely caused by, its own gross negligence or willful misconduct. ~~The~~ No Appointed Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to ~~the~~ such Appointed Agent by ~~▇▇▇▇▇ ▇,~~ the Borrower Agent or a Lender, and ~~the~~ no Appointed 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 ~~thereunder~~ hereunder or in connection ~~therewith~~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 (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. ~~As to~~ If any ~~matters not expressly provided for by this Agreement~~ Lender acquires knowledge of a Default or Event of Default, it shall promptly notify the Agent and the other Lenders thereof in writing. Each Lender agrees that, except as otherwise provided in any Loan Documents ~~(including enforcement~~ or ~~collection),~~ with the ~~Administrative~~ written consent of the Agent and the ~~Collateral Agent shall~~ Required Lenders, it will not ~~be required to~~ take any enforcement action, accelerate the Obligations under any Loan Documents, or exercise any ~~discretion~~ right that it might otherwise have under Applicable Law to credit bid at foreclosure sales, UCC or ~~take any action, but shall be required to act~~ PPSA sales or ~~to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon~~ other similar dispositions of Collateral. Notwithstanding the ~~instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided~~foregoing, however, a Lender may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the ~~Administrative Agent and~~ Obligations held by such Lender, including the ~~Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent~~ filing of proofs of claim in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable lawa Bankruptcy Proceeding. ~~The~~ Each Appointed Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. ~~The~~ Each Appointed Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. ~~The~~ Each Appointed Agent may consult with legal counsel (who may be counsel for ~~Level 3 or the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The~~ Each Appointed Agent may perform any and all its duties and exercise its rights and powers by or through any one or more agents, co-agents or sub-agents appointed by ~~the~~ such Appointed Agent. ~~The~~ Each Appointed Agent and any such agents, co-agents or sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The Lenders shall execute and deliver such documents as any Appointed Agent deems appropriate to vest any rights or remedies in such agents, co-agents or sub-agent. The exculpatory provisions of the preceding paragraphs shall apply to any such agents, co-agents or sub-agent and to the Related Parties of ~~each~~ any Appointed Agent and any agents, co-agents or 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 such Appointed Agent. Subject to the appointment and acceptance of a successor to any Appointed Agent as provided in this paragraph, ~~the~~ any Appointed Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Issuing Banks and ~~Level 3~~the Borrower Agent. Upon any such resignation, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing,~~ with the consent ~~of Level 3~~ (~~which consent shall~~ not to be unreasonably withheld or delayed) of the Company, to appoint a successor; provided that, during the existence and continuation of an Event of Default, no consent of the Company shall be required. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Appointed Agent gives notice of its resignation, then the retiring Appointed Agent may, on behalf of the ~~Lenders~~Lenders and the Issuing Banks, appoint a successor Appointed Agent which shall be a ~~Lender or a~~ commercial bank ~~with an office in New York, New York,~~ or an Affiliate of ~~such Lender or~~ any such ~~bank~~commercial bank and, so long as no Event of Default shall have occurred and be continuing, shall be reasonably acceptable to the Company. Upon the acceptance of its appointment as an Appointed Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Appointed Agent, and the retiring Appointed Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the ~~Borrower~~ Company to a successor Appointed Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Company and such successor. After the Appointed Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Appointed 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 Appointed Agent. Any successor to Bank of America, N.A. by merger or acquisition of stock or this loan shall continue to be the Agent hereunder without further act on the part of the parties hereto, unless such successor resigns as provided above. Each Lender acknowledges that it has, independently and without reliance upon ~~the~~ any Appointed Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon ~~the~~ any Appointed 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 any Appointed Agent; (b) no Appointed Agent (i) makes 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 or (ii) shall 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 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 each Appointed 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 attorneys’ fees) incurred by any Appointed 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 and any action such Lender may take as a result of or any conclusion it may draw from any such Report. The co-arrangers, joint bookrunners andarranger, bookrunner, syndication agent and a documentation agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.

Appears in 1 contract

Sources: Credit Agreement (Nexeo Solutions Holdings, LLC)

The Agent. ~~Each~~ 22.1 The Agent shall be deemed to be authorized on behalf of ~~the Lenders hereby irrevocably appoints the Agent as its agent and authorizes the Agent~~ each Investor to ~~take~~ act on behalf of such ~~actions on its behalf~~ Investor under this Agreement and to exercise such powers hereunder as are specifically delegated to or required of the Agent by the terms ~~of the Loan Documents~~hereof, together with such ~~actions and~~ powers as ~~are~~ may be reasonably incidental thereto. In By accepting their Notes, each Investor shall be deemed to have agreed to indemnify the ~~event~~ Agent from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may at any time be imposed on, incurred by, or asserted against the ~~institution serving as~~ Agent in any way relating to or arising out of this Agreement, including the reimbursement of the Agent for all out-of-pocket expenses (including attorneys' fees) incurred by the Agent hereunder ~~shall also be a Lender, it shall have~~ or in connection herewith or in enforcing 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality Obligations of the ~~foregoing~~Investors under this Agreement, ~~(a) the Agent shall not be subject~~ in all cases as to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that which the Agent is ~~required to exercise in writing~~ not reimbursed by the ~~Required Lenders (or such other number or percentage of the Lenders as~~ Borrower; provided that no Investor shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the ~~failure~~ payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements determined by a court of competent jurisdiction in a final proceeding to ~~disclose, any information relating to ▇▇▇▇▇ ▇,~~ have resulted solely from the Borrower or any of the Subsidiaries of Level 3 that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. The 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 Agent's gross negligence or willful misconduct. The Agent shall not be ~~deemed not~~ required to ~~have knowledge~~ take any action hereunder, or to prosecute or defend any suit in respect of ~~any Default~~ this Agreement, unless ~~and until written notice thereof is given to~~ the Agent is indemnified to its reasonable satisfaction by ~~▇▇▇▇▇ ▇~~the Investors against loss, costs, liability and expense. If any indemnity in favor of the ~~Borrower~~ Agent shall become impaired, it may call for additional indemnity and cease to do the acts indemnified against until such additional indemnity is given. 22.2 Neither the Agent nor any of its directors, officers, partners, employees or ~~a Lender~~agents shall be liable to any Investor for any action taken or omitted to be taken by it under this Agreement, ~~and the~~ or in connection herewith. The Agent shall not be responsible to any Investor for any recitals, statements, representations or ~~have any duty to ascertain or inquire into (i) any statement, warranty or representation made in~~ warranties herein or in ~~connection with~~ any ~~Loan Document, (ii) the contents of any certificate, report~~ certificate or other document delivered ~~thereunder or~~ in connection ~~therewith~~herewith or for the condition or value of any of the Collateral, ~~(iii)~~ or be required to make any inquiry concerning either the performance or observance of any of the ~~covenants~~terms, ~~agreements or other terms~~ provisions or conditions ~~set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness~~ of any ~~Loan Document~~ of the Notes, the financial condition of the Borrower or ~~any other agreement, instrument~~ the existence or ~~document, or (v) the satisfaction~~ possible existence of any ~~condition set forth in Article IV~~ default or ~~elsewhere in any Loan Document, other than to confirm receipt~~ event of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable lawdefault. The Agent shall be entitled to rely ~~upon,~~ upon advice of counsel concerning legal matters and ~~shall not incur any liability for relying upon,~~ upon any notice, ~~request~~consent, certificate, ~~consent, statement, instrument, document~~ statement or ~~other~~ writing ~~believed by~~ which it believes to be genuine and to have ~~been signed or sent~~ presented by ~~the~~ a proper ~~Person.~~ person. 22.3 The Agent ~~also may rely upon any statement made to it orally or by telephone and believed by it to be made by~~ shall have the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for Level 3 or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its same rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply with respect to any ~~such sub-agent and to the Related Parties of each Agent and~~ Notes held by it or 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 Agent. Subject to the appointment and acceptance of a successor as provided in this paragraph, the Agent may resign at any time by notifying the Lenders and Level 3. Upon any such resignation, the Required Lenders shall have the right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its ~~resignation~~affiliates, ~~then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a Lender or a bank with an office in New York, New York, or an Affiliate of such Lender or~~ as any ~~such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to~~ Investor and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by Level 3 and the Borrower to a successor Agent shall be may exercise the same as ~~those payable to its predecessor unless otherwise agreed with such successor. After~~ if it were not the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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.

Appears in 1 contract

Sources: Pledge and Security Agreement (Tube Media Corp.)

The Agent. In order to expedite the transactions contemplated by this Agreement, Citibank, N.A. is hereby appointed to act as Agent on behalf of the Lenders. Each of the Lenders hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such actions on ~~its~~ behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent ~~shall not have~~ is hereby expressly authorized by the Lenders, without hereby limiting any ~~duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing~~implied authority, (a) to receive on behalf of the ~~Agent shall not 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) ~~the 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 Agent is required to exercise in writing by the Required Lenders (or such other number or percentage give notice on behalf of each of the Lenders ~~as shall be necessary under~~ to either Borrower of any Event of Default specified in this Agreement of which the ~~circumstances as provided~~ Agent has actual knowledge acquired in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, connection with its agency hereunder; and (c) ~~except~~ to distribute to each Lender copies of all notices, financial statements and other materials delivered by either Borrower pursuant to this Agreement as ~~expressly set forth in~~ received by the ~~Loan Documents,~~ Agent. Neither the Agent nor any of its directors, officers, employees or agents shall ~~not have any duty to disclose, and shall not~~ be liable as such for any action taken or omitted by any of them except for its or his own gross negligence or wilful misconduct, or be responsible for any statement, warranty or representation herein or the ~~failure~~ contents of any document delivered in connection herewith, or be required to ~~disclose,~~ ascertain or to make any ~~information relating to ▇▇▇▇▇ ▇,~~ inquiry concerning the performance or observance by either Borrower or of any of the ~~Subsidiaries of Level 3 that is communicated to~~ terms, conditions, covenants or ~~obtained by the institution serving as Agent or any of its Affiliates~~ agreements contained in any ~~capacity~~Loan Document. The Agent shall not be ~~liable~~ responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any ~~action taken~~ other Loan Documents or ~~not taken~~ other instruments or agreements. The Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by ~~it with the consent or at the request of~~ the Required Lenders (and, except as otherwise specifically provided herein, such instructions and any action or ~~such other number or percentage of the Lenders as~~ inaction pursuant thereto shall be ~~necessary under~~ binding on all the ~~circumstances as provided in Section 9.02) or~~ Lenders. The Agent shall, in the absence of ~~its own gross negligence or willful misconduct. The Agent shall be deemed not to have~~ knowledge ~~of any Default unless and until written notice thereof is given~~ to the ~~Agent by ▇▇▇▇▇ ▇~~contrary, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall 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. ~~The~~ Neither the Agent ~~also may rely upon~~ nor any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ either Borrower on account of the failure of or delay in performance or breach by ~~telephone and believed~~ 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 ~~it to be made by the proper Person, and shall not incur~~ any ~~liability for relying thereon~~other Lender or either Borrower of any of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. The Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for Level 3 or the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it 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 in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. The Lenders hereby acknowledge that the Agent ~~may perform~~ shall be under no duty to take any ~~and all its duties and exercise its rights and powers~~ discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Borrowers. Upon any such resignation, the Required Lenders shall have the right, ~~with~~after consultation with the Borrowers, ~~so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a ~~Lender or a~~ bank with an office in New York, New York, having a combined capital and surplus of at least $50,000,000 or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of ~~its~~ any appointment as Agent 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 ~~Agent,~~ Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor.~~ After the Agent’s 's resignation hereunder, the provisions of this Article and Section ~~9.03~~ 10.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Agent. With respect to the Loans made by it hereunder, the Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not the Agent, and the Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not the Agent. Each Lender agrees (i) to reimburse the Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Total Commitment shall be terminated, the percentage it holds of the aggregate outstanding principal amount of the Loans) of any expenses incurred for the benefit of the Lenders by the Agent, 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 Agent and any of its directors, officers, employees, agents or advisors, 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 it in its capacity as the Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or any action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to the 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 the Agent or any of its directors, officers, employees, agents or advisors. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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~~ Document, any related agreement or any document furnished hereunder or thereunder. Each Lender hereby acknowledges that the documentation agent and the syndication agent have no duties or liability hereunder other than in their capacity as a Lender.

Appears in 1 contract

Sources: Competitive Advance and Revolving Credit Facility Agreement (Stilwell Financial Inc)

The Agent. ~~Each of the Lenders hereby irrevocably appoints the~~ (a) The Agent ~~as its agent and authorizes the Agent~~ is authorized to take such ~~actions~~ action on ~~its~~ behalf of each of the Banks and to exercise all such powers as are hereunder and in related documents delegated to the ~~Agent by the terms of the Loan Documents~~Agent, together with such ~~actions and~~ powers as are reasonably incidental thereto~~. In the event the institution serving as the Agent hereunder~~ , provided that no duties or responsibilities not expressly assumed herein or therein shall ~~also~~ be ~~a Lender, it shall~~ implied to 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~~ been assumed by the Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, . (b) The relationship between the Agent ~~shall not have any duty~~ and each of the Banks is that of an independent contractor. The use of the term "Agent" is for convenience only and is used to ~~take any discretionary action or exercise any discretionary powers~~describe, ~~except discretionary rights~~ as a form of convention, the independent contractual relationship between the Agent and ~~powers expressly contemplated by~~ each of the Banks. Nothing contained in this Agreement nor the other Loan Documents ~~that~~ shall be construed to create an agency, trust or other fiduciary relationship between the Agent ~~is required to exercise in writing by the Required Lenders (or such other number or percentage~~ and any of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and Banks. (c) ~~except as expressly set forth in~~ As an independent contractor empowered by the Banks to exercise certain rights and perform certain duties and responsibilities hereunder and under the other Loan Documents, the Agent is nevertheless a "representative" of the Banks, as that term is defined in Article 1 of the Uniform Commercial Code, for purposes of actions for the benefit of the Banks and the Agent with respect to all collateral security and guaranties contemplated by the Loan Documents. (d) The Agent may exercise its powers and execute its duties by or through employees or agents and shall ~~not have any duty~~ be entitled to ~~disclose~~take, and ~~shall not be liable for~~ to rely on, advice of counsel concerning all matters pertaining to its rights and duties under this Agreement and the ~~failure to disclose~~other Loan Documents. The Agent may utilize the services of such Persons as the Agent in its sole discretion may reasonably determine. All reasonable fees and expenses of any auditors, ~~any information relating to ▇▇▇▇▇ ▇~~financial examiners, ~~the Borrower or any of the Subsidiaries of Level 3 that is communicated to or obtained~~ appraisers and attorneys utilized by the ~~institution serving as~~ Agent or pursuant to this paragraph shall be paid by the Borrowers. (e) Neither the Agent nor any of its ~~Affiliates~~ shareholders, directors, officers or employees nor any other Person assisting them in their duties nor any ~~capacity. The Agent~~ agent or employee thereof, shall ~~not~~ be liable for any waiver, consent or approval given or any action ~~taken~~ taken, or ~~not taken~~ omitted to be taken, in good faith by it ~~with the consent~~ or ~~at the request~~ them hereunder or under any of the ~~Required Lenders (~~other Loan Documents, or in connection herewith or therewith, or be responsible for the consequences of any oversight or error of judgment whatsoever, except that the Agent or such other ~~number~~ Person, as the case may be, may be liable for losses due to its willful misconduct or ~~percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02~~gross negligence. (f) ~~or in the absence of its own gross negligence or willful misconduct.~~ The ~~Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ▇▇▇▇▇ ▇, the Borrower or a Lender, and the~~ Agent shall not be responsible for the execution or ~~have~~ validity or enforceability for this Agreement, the Notes, the Letters of Credit, the Bankers' Acceptances, any ~~duty~~ of the other Loan Documents or any instrument at any time constituting, or intended to constitute collateral security for the Loans or for the value of any such collateral security or for the validity, enforceability or collectibility or any such amounts owing with respect to the Loans, or for any recitals or statements, warranties or representations herein or made in any certificate or instrument hereafter furnished to it by or on behalf of any Borrower or be bound 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 thereunder or in connection therewith, (iii) as to the performance or observance of any of the ~~covenants~~terms, conditions, covenants or agreements herein or ~~other terms or conditions set forth~~ in any ~~Loan Document~~instrument at any time constituting, ~~(iv)~~ or intended to constitute, collateral security for the ~~validity~~Loans. The Agent shall not be bound to ascertain whether any notice, ~~enforceability~~consent, ~~effectiveness~~ waiver or ~~genuineness~~ request delivered to it by any Borrower or any holder of any ~~Loan Document~~ of the Loans shall have been duly authorized or is true, accurate and complete. The Agent has not made nor does it now make any representations or warranties, express or implied, nor does it assume any liability to the Banks with respect to the credit worthiness or financial condition of any Borrower or Guarantor and each Bank represents and warrants to the Agent that it has made its own independent evaluation of the credit worthiness of the Borrowers and the Guarantors and has not relied upon the Agent or any ~~other agreement, instrument~~ material or ~~document,~~ information furnished by the Agent in making such evaluation. (g) A payment by the Borrowers or ~~(v)~~ the ~~satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered~~ Guarantors to the ~~Agent. As to~~ Agent hereunder or under any ~~matters not expressly provided for by this Agreement and~~ of the other Loan Documents ~~(including enforcement~~ for the account of any Bank shall constitute a payment to such Bank. The Agent agrees promptly to distribute to each Bank such Bank's pro rata share of payments received by the Agent for the account of the Banks except as otherwise expressly provided herein or ~~collection)~~in any of the other Loan Documents. If, in the reasonable opinion of the Agent, the ~~Administrative~~ distribution of any amount received by it in such capacity hereunder might involve it in liability, it may refrain from making distribution until its right to make distribution shall have been adjudicated by a court of competent jurisdiction. If a court of competent jurisdiction shall adjudge that any amount received and distributed by the Agent is to be repaid, each Person to whom any such distribution shall have been made shall either repay to the Agent its proportionate share of the amount so adjudged to be repaid or shall pay over the same in such manner and ~~the Collateral Agent shall not be required~~ to ~~exercise any discretion or take any action, but~~ such Persons as shall be ~~required~~ determined by such court. (h) Notwithstanding anything to ~~act~~ the contrary contained in this Agreement or any of the other Loan Documents, any Bank that fails to (i) make available to the Agent is pro rata share of any Loan or to ~~refrain from acting~~ purchase any Letter of Credit Participation or to purchase any participation as required by Section 9.1 hereto or (ii) comply with the provisions of Section 9.2 with respect to making dispositions and arrangements with the other Banks, where such Bank's share of any payment received, whether by setoff or otherwise, is in excess of its pro rata share of such payments due and payable to all of the Banks, in each case as, when and to the full extent required by the provisions of this Agreement, shall be deemed delinquent (a "Delinquent Bank") and shall be ~~fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and~~ deemed a Delinquent Bank until such ~~instructions~~ time as such delinquency is satisfied. A Delinquent Bank shall be ~~binding upon~~ deemed to have assigned any and all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory payments due to it from the ~~Lenders with respect~~ Borrowers, whether on account of outstanding Loans, Unpaid Reimbursement Obligations, interest, fees or otherwise, to the remaining nondelinquent Banks for application to, and reduction of, their respective pro rata shares of all outstanding Loans and Unpaid Reimbursement Obligations. The Delinquent Bank hereby authorizes the Agent to distribute such payments to the nondelinquent Banks in proportion to their respective pro rata shares of all outstanding Loans and Reimbursement Obligations. A Delinquent Bank shall be deemed to have satisfied in full a delinquency when and if, as a result of application of the assigned payments to all outstanding Loans and Unpaid Reimbursement Obligations of the nondelinquent Banks, the Banks' respective pro rata shares of all outstanding Loans and Unpaid Reimbursement Obligations have returned to those in effect immediately prior to such ~~action or~~ delinquency and without giving effect to the nonpayment causing such delinquency. (iii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may ~~consult with legal counsel (who may be counsel for Level 3~~ deem and treat the payee of any Note or the ~~Borrower~~purchaser of any Letter of Credit Participation as the absolute owner or purchaser thereof for all purposes hereof until it shall have been satisfied in writing with a different name by such payee or by a subsequent holder, assignee or transferee. (j) To the extent the Agent is not otherwise reimbursed by the Borrowers or the Guarantors, the Banks ratably agree hereby to indemnify and hold harmless the Agent from and against any and all claims, actions and suits (whether groundless or otherwise), ~~independent accountants~~ losses, damages, costs, expenses (including any expenses for which the Agent has not been reimbursed by the Borrowers or the Guarantors as required by this Agreement), and liabilities of every nature and character arising out of or related to this Agreement, the Notes, or any of the other ~~experts selected~~ Loan Documents or the transactions contemplated or evidenced hereby or thereby, or the Agent's actions taken hereunder or thereunder, except to the extent that any of the same shall be directly caused by the Agent's willful misconduct or gross negligence. (k) In its individual capacity, FNBB shall have the same obligations and the same rights, powers and privileges in respect to its Commitment and the Loans made by it, and ~~shall not be liable for any action taken or not taken by it in accordance with the advice~~ as a holder of any ~~such counsel~~of the Notes and as a purchaser of any Letter of Credit Participations, ~~accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by~~ as it would have were it not also the Agent. . (l) The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor as provided in this paragraph, the Agent may resign at any time by ~~notifying~~ giving sixty (60) days prior written notice thereof to the ~~Lenders~~ Banks and ~~Level 3~~the Borrowers. Upon any such resignation, the ~~Required Lenders~~ Majority Banks shall have the ~~right, with, so long as no~~ right to appoint a successor Agent. Unless a Default or Event of Default shall have occurred and be continuing, such successor Agent shall be reasonably acceptable to the ~~consent of Level 3 (which consent shall not be unreasonably withheld or delayed) to appoint a successor~~Borrowers. If no successor Agent shall have been so appointed by the ~~Required Lenders~~ Majority Banks and shall have accepted such appointment within 30 thirty (30) days after the retiring ~~Agent gives~~ Agent's giving of notice of ~~its~~ resignation, then the retiring Agent may, on behalf of the ~~Lenders~~Banks, appoint a successor ~~Agent~~ Agent, which shall be a ~~Lender~~ financial institution having a rating of not less than A or ~~a bank with an office in New York, New York, or an Affiliate of such Lender or any such bank~~its equivalent by Standard & Poor's Corporation. Upon the acceptance of ~~its~~ any appointment as Agent hereunder by a ~~successor~~successor Agent, such successor Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor.~~ After ~~the~~ any retiring Agent~~’s resignation hereunder~~'s resignation, the provisions of this ~~Article~~ Agreement and ~~Section 9.03~~ the other Loan Documents shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties in~~ with respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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.

Appears in 1 contract

Sources: Multicurrency Revolving Credit and Term Loan Agreement (Dynatech Corp)

The Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the Agent (each, an “Appointed Agent”) as its agent and authorizes ~~the~~ each Appointed Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to ~~the~~ each Appointed Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In Without limiting the ~~event~~ generality of the ~~institution~~ foregoing, the Agent shall have the sole and exclusive authority to (a) act as the disbursing and collecting agent for Lenders with respect to all payments and collections arising in connection with the Loan Documents; (b) execute and deliver as agent each Loan Document, including any intercreditor or subordination agreement, and accept delivery of each Loan Document from any Loan Party or other Person; (c) act as collateral agent for Secured Parties for purposes of perfecting and administering Liens under the Loan Documents, and for all other purposes stated therein; (d) manage, supervise or otherwise deal with Collateral; and (e) take any enforcement action or otherwise exercise any rights or remedies with respect to any Collateral under the Loan Documents, applicable Law or otherwise. The Appointed Agents alone shall be authorized to determine whether any Accounts or Inventory constitute Eligible Receivables or Eligible Inventory, or whether to impose or release any reserve, which determinations and judgments, if exercised in good faith, shall exonerate each Appointed Agent from liability to any Lender or other Person for any error in judgment. Any bank serving as ~~the~~ an Appointed Agent hereunder ~~shall also be a Lender, it~~ 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~~ an Appointed Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the ~~Borrower~~ Loan Parties or any ~~Subsidiary~~ subsidiary of a Loan Party or other Affiliate thereof as if it were not the Agent hereunder. Without limiting the powers of the Agent, for the purposes of holding any hypothec granted to the Attorney (as defined below) pursuant to the laws of the Province of Quebec to secure the prompt payment and performance of any and all Obligations by any Loan Party, each of the Secured Parties hereby irrevocably appoints and authorizes the Agent and, to the extent necessary, ratifies the appointment and authorization of the Agent, to act as the hypothecary representative of the present and future creditors as contemplated under Article 2692 of the Civil Code (in such capacity, the “Attorney”), and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties that are conferred upon the Attorney under any related deed of hypothec. The Attorney shall: (i) 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 pursuant to any such deed of hypothec and applicable Law, and (ii) benefit from and be subject to all provisions hereof with respect to the Agent mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the Secured Parties and the Loan Parties. Any person who becomes a Secured Party shall, by its execution of an Assignment and Assumption, be deemed to have consented to and confirmed the Attorney as the person acting as hypothecary representative holding the aforesaid hypothecs as aforesaid and to have ratified, as of the date it becomes a Secured Party, all actions taken by the Attorney in such capacity. The substitution of Agent pursuant to the provisions of this Article VIII also constitutes the substitution of the Attorney. No Appointed Agent shall ~~not~~ have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) ~~the~~ no Appointed Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the~~ no Appointed 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~~ such Appointed 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, ~~the~~ no Appointed Agent shall ~~not~~ have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇, the Borrower~~ any Loan Party or any of ~~the Subsidiaries of Level 3~~ its subsidiaries that is communicated to or obtained by the ~~institution~~ bank serving as an Appointed Agent or any of its Affiliates in any capacity. ~~The~~ No Appointed 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 of, or for any losses not directly and solely caused by, its own gross negligence or willful misconduct. ~~The~~ No Appointed Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to ~~the~~ such Appointed Agent by ~~▇▇▇▇▇ ▇,~~ the Borrower Agent or a Lender, and ~~the~~ no Appointed 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 ~~thereunder~~ hereunder or in connection ~~therewith~~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 (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. ~~As to~~ If any ~~matters not expressly provided for by this Agreement~~ Lender acquires knowledge of a Default or Event of Default, it shall promptly notify the Agent and the other Lenders thereof in writing. Each Lender agrees that, except as otherwise provided in any Loan Documents ~~(including enforcement~~ or ~~collection),~~ with the ~~Administrative~~ written consent of the Agent and the ~~Collateral Agent shall~~ Required Lenders, it will not ~~be required to~~ take any enforcement action, accelerate the Obligations under any Loan Documents, or exercise any ~~discretion~~ right that it might otherwise have under applicable Law to credit bid at foreclosure sales, UCC or ~~take any action, but shall be required to act~~ PPSA sales or ~~to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon~~ other similar dispositions of Collateral. Notwithstanding the ~~instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided~~foregoing, however, a Lender may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the ~~Administrative Agent and~~ Obligations held by such Lender, including the ~~Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent~~ filing of proofs of claim in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable lawa Bankruptcy Proceeding. ~~The~~ Each Appointed Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. ~~The~~ Each Appointed Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. ~~The~~ Each Appointed Agent may consult with legal counsel (who may be counsel for ~~Level 3 or the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The~~ Each Appointed Agent may perform any and all its duties and exercise its rights and powers by or through any one or more agents, co-agents or sub-agents appointed by ~~the~~ such Appointed Agent. ~~The~~ Each Appointed Agent and any such agents, co-agents or sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The Lenders shall execute and deliver such documents as any Appointed Agent deems appropriate to vest any rights or remedies in such agents, co-agents or sub-agent. The exculpatory provisions of the preceding paragraphs shall apply to any such agents, co-agents or sub-agent and to the Related Parties of ~~each~~ any Appointed Agent and any agents, co-agents or 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 such Appointed Agent. Subject to the appointment and acceptance of a successor to any Appointed Agent as provided in this paragraph, ~~the~~ any Appointed Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Issuing Banks and ~~Level 3~~the Borrower Agent. Upon any such resignation, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing,~~ with the consent ~~of Level 3~~ (~~which consent shall~~ not to be unreasonably withheld or delayed) of the Company, to appoint a successor; provided that, during the existence and continuation of an Event of Default, no consent of the Company shall be required. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Appointed Agent gives notice of its resignation, then the retiring Appointed Agent may, on behalf of the ~~Lenders~~Lenders and the Issuing Banks, appoint a successor Appointed Agent which shall be a ~~Lender or a~~ commercial bank ~~with an office in New York, New York,~~ or an Affiliate of ~~such Lender or~~ any such ~~bank~~commercial bank and, so long as no Event of Default shall have occurred and be continuing, shall be reasonably acceptable to the Company. Upon the acceptance of its appointment as an Appointed Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Appointed Agent, and the retiring Appointed Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the ~~Borrower~~ Company to a successor Appointed Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Company and such successor. After the Appointed Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Appointed 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 Appointed Agent. Any successor to Bank of America, N.A. by merger or acquisition of stock or this loan shall continue to be the Agent hereunder without further act on the part of the parties hereto, unless such successor resigns as provided above. Each Lender acknowledges that it has, independently and without reliance upon ~~the~~ any Appointed Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon ~~the~~ any Appointed 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 any Appointed Agent; (b) no Appointed Agent (i) makes 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 or (ii) shall 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 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 each Appointed 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 attorneys’ fees) incurred by any Appointed 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 and any action such Lender may take as a result of or any conclusion it may draw from any such Report. The arranger, bookrunner, syndication agent and a documentation agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.

Appears in 1 contract

Sources: Credit Agreement (Nexeo Solutions, Inc.)

The Agent. (a) Each ~~of the Lenders~~ Lessor Party hereby ~~irrevocably~~ designates and appoints the Agent as ~~its~~ administrative agent and collateral agent of such Lessor Party to act as specified herein and in the other Operative Agreements, and each such Lessor Party hereby authorizes the Agent as the administrative agent and collateral agent for such Lessor Party, to take such ~~actions~~ action on its behalf under the provisions of this Agreement and the other Operative Agreements and to exercise such powers and perform such duties as are expressly delegated ~~to the Agent~~ by the terms hereof and of the ~~Loan Documents~~other Operative Agreements, together with such ~~actions and~~ other powers as are reasonably incidental thereto. In Such delegation of authority shall include the ~~event the institution serving as~~ execution and delivery by the Agent ~~hereunder shall also be a Lender, it shall have~~ of release instruments in recordable form releasing the ~~same rights and powers~~ Lien of the Operative Agreements in ~~its capacity as a Lender as~~ accordance with the requirements thereof. Notwithstanding any ~~other Lender and may exercise~~ provision to the ~~same as though it were not the Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage~~ contrary in any ~~kind~~ of ~~business with Level 3~~the Operative Agreements, the ~~Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The~~ Agent shall not have any duties or ~~obligations~~ responsibilities, except those expressly set forth ~~in the Loan Documents. Without limiting the generality~~ herein and therein, or any fiduciary relationship with any Lessor Party, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any of the ~~foregoing~~other Operative Agreements, ~~(a)~~ or shall otherwise exist against the Agent. The provisions of this Section 8.6 are solely for the benefit of the Agent and the Lessor Parties and no other Person shall ~~not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not~~ have any ~~duty to take any discretionary action or exercise any discretionary powers, except discretionary~~ rights ~~and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage~~ as a third party beneficiary of the ~~Lenders~~ provisions hereof. Except as ~~shall be necessary under the circumstances as~~ otherwise provided in this Section ~~9.02)~~8.6, in performing its functions and ~~shall not have any duty to take any action or exercise any powers that would result in~~ duties under this Agreement and the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documentsother Operative Agreements, the Agent shall act solely as Agent of the Lessor Parties. The Agent does not ~~have any duty to disclose,~~ assume and shall not be ~~liable~~ deemed to have assumed any obligation or relationship of agency or trust with or for ~~the failure to disclose,~~ any ~~information relating to ▇▇▇▇▇ ▇, the Borrower~~ Credit Party or any ~~of the Subsidiaries of Level 3 that is communicated to or obtained by the institution serving as~~ other Person. (b) The Agent or may execute any of its ~~Affiliates in any capacity~~duties hereunder or under the other Operative Agreements by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care. (c) Neither the Agent nor any of its officers, directors, employees, agents, attorneys- in-fact or affiliates shall be (i) liable for any action lawfully taken or ~~not~~ omitted to be taken by it or such Person under or in connection herewith or in connection with ~~the consent or at the request~~ any of the ~~Required Lenders~~ other Operative Agreements (except for its 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~~ Person’s own gross negligence or willful misconduct), or (ii) responsible in any manner to any Lessor Party for any recitals, statements, representations or warranties contained herein or in any of the other Operative Agreements or in any certificate, report, statement or other document referred to or provided for in, or received by the Agent under or in connection herewith or in connection with the other Operative Agreements, or enforceability or sufficiency of any of the other Operative Agreements, or for any failure of any party (not including the Agent) to any Operative Agreement to perform its obligations hereunder or thereunder. The ~~Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ▇▇▇▇▇ ▇, the Borrower or a Lender, and the~~ Agent shall not be responsible to any Lessor Party for the effectiveness, genuineness, validity, enforceability, collectability or ~~have~~ sufficiency of this Agreement, or any ~~duty~~ of the other Operative Agreements or for any representations, warranties, recitals or statements made herein or therein or made by any Credit Party in any written or oral statement or in any financial or other statements, instruments, reports, certificates or any other documents in connection herewith or therewith furnished or made by the Agent to any Lessor Party or by or on behalf of any Credit Party to the Agent or any Lessor Party or be required 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 thereunder or in connection therewith, (iii) as to the performance or observance of any of the ~~covenants~~terms, conditions, provisions, covenants or agreements contained herein or ~~other terms~~ therein or ~~conditions set forth in any Loan Document, (iv)~~ as to the ~~validity, enforceability, effectiveness~~ use of the proceeds of the purchases or ~~genuineness~~ of the existence or possible existence of any ~~Loan Document~~ Default or ~~any other agreement~~Event of Default or to inspect the properties, ~~instrument~~ books or ~~document, or (v) the satisfaction~~ records of any ~~condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt~~ of ~~items expressly required to be delivered to~~ the ~~Agent~~Credit Parties. ~~As to any matters not expressly provided for by this Agreement and the other Loan Documents~~ CHAR1\1917164v13 (~~including enforcement or collection), the Administrative Agent and the Collateral~~ d) The Agent shall ~~not~~ be ~~required~~ entitled to ~~exercise any discretion or take any action~~rely, ~~but shall be required to act or to refrain from acting (~~and shall be fully protected in ~~so acting~~ relying, upon any note, writing, resolution, notice, consent, certificate, affidavit, letter, facsimile, email, cablegram, telegram, telecopy, telex, teletype or ~~refraining from acting) upon the instructions of the Requisite Lenders~~electronic message, ~~and such instructions shall be binding upon all Lenders~~statement, ~~provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent~~ order or ~~the Collateral Agent~~ other document or conversation believed by it in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The 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 correct and to have been ~~signed~~ signed, sent or ~~sent by the proper Person. The 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,~~ Person or Persons and ~~shall not incur any liability for relying thereon. The Agent may consult with~~ upon advice and statements of legal counsel (~~who may be~~ including counsel ~~for Level 3 or the Borrower~~to any Credit Party), independent accountants and other experts selected by itthe Agent with reasonable care. The Agent may deem and treat the Lessor Parties as the owner of their respective interests hereunder for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Agent in accordance with Section 10 or any other applicable provision of the Operative Agreements. The Agent, acting in its capacity as Agent, shall be fully justified in failing or refusing to take any action under this Agreement or under any of the other Operative Agreements unless it shall first receive such advice or concurrence of the Majority Secured Parties as it deems appropriate or it shall first be indemnified to its satisfaction by the Lessor Parties against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder or under any of the other Operative Agreements in accordance with a request of the Majority Secured Parties or all the Lessor Parties if such request is a Unanimous Vote Matter and such request, and ~~shall not be liable for~~ any action taken or failure to act pursuant thereto shall be binding upon all the Lessor Parties (including their successors and assigns). (e) The Agent shall not ~~taken by it in accordance with~~ be deemed to have knowledge or notice of the ~~advice~~ occurrence of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor as provided in this paragraph, the Agent may resign at any time by notifying the Lenders and Level 3. Upon any such resignation, the Required Lenders shall have the right, with, so long as no Default or Event of Default ~~shall have occurred and be continuing~~unless the Agent has received notice from a Lessor Party, the ~~consent~~ Construction Agent or the Lessee referring to the Operative Agreement, describing such Default or Event of ~~Level 3 (which consent~~ Default and stating that such notice is a “notice of default.” In the event that the Agent receives such a notice, the Agent shall ~~not~~ give prompt notice thereof to the Lessor Parties. Subject to this Section 8.6 of the Participation Agreement, the Agent shall take such action with respect to such Default or Event of Default as shall be ~~unreasonably withheld or delayed) to appoint a successor. If no successor shall have been so appointed~~ directed by the ~~Required Lenders and shall have accepted such appointment within 30 days after~~ Majority Secured Parties. (f) Each Lessor Party expressly acknowledges that neither the ~~retiring~~ Agent ~~gives notice~~ nor any of its ~~resignation~~officers, ~~then~~ directors, employees, agents, attorneys-in-fact or affiliates has made any representations or warranties to it and that no act by the ~~retiring~~ Agent ~~may~~or any affiliate thereof hereafter taken, ~~on behalf~~ including any review of the ~~Lenders~~affairs of the Credit Parties, ~~appoint a successor Agent which~~ shall be ~~a Lender~~ deemed to constitute any representation or ~~a bank with an office in New York, New York, or an Affiliate of such Lender or~~ warranty by the Agent to any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 AgentLessor Party. Each ~~Lender acknowledges~~ Lessor Party represents to the Agent that it has, independently and without reliance upon the Agent or any other ~~Lender~~ Lessor Party, and based on such documents and information as it has deemed appropriate, made its own ~~credit analysis~~ appraisal of and investigation into the business, assets, operations, property, financial and other conditions, prospects and creditworthiness of the Credit Parties and made its own decision to make its purchases hereunder and enter into this Agreement. Each ~~Lender~~ Lessor Party also ~~acknowledges~~ represents that it will, independently and without reliance upon the Agent or any other ~~Lender~~ Lessor Party, and based on such documents and information as it shall ~~from time to time~~ deem ~~appropriate~~appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under ~~or based upon~~ this Agreement, and to make such investigation as it deems necessary to inform itself as to the business, assets, operations, property, financial and other conditions, prospects and creditworthiness of the Credit Parties. Except for notices, reports and other documents expressly required to be furnished to the Lessor Parties by the Agent pursuant to this Agreement, the Agent shall not have any duty or responsibility to provide any Lessor Party with any credit or other information concerning the business, operations, assets, property, financial or other conditions, prospects or creditworthiness of the Credit Parties which may come into the possession of the Agent or any of its officers, directors, employees, agents, attorneys-in-fact or affiliates. CHAR1\1917164v13 (g) The Agent and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with the Credit Parties as though the Agent were not Agent hereunder. (h) The provisions of Section 10.3 shall govern with respect to the replacement of the Agent. (i) Regarding the Agent functioning as the collateral agent for the Secured Parties, each of the Lessor (and to the extent necessary, each of the other Lessor Parties) hereby assigns to the Agent the Lien granted by the Lessee pursuant to the Lease to secure the Lessor Advances. The Secured Parties acknowledge, agree and direct that the rights and remedies of the Secured Parties in connection with an Event of Default, including as beneficiaries of the Lien of the Security Documents, shall be exercised by the Agent on behalf of the Secured Parties as directed from time to time (a) by the Majority Secured Parties; provided, notwithstanding the foregoing, the Agent shall not take any action concerning the exercise of remedies or otherwise under any of the Operative Agreements with respect to the Property (regardless of whether a Default or Event of Default has occurred and is continuing) unless the Lessor has expressly consented to such action or (b) pursuant to Sections 8.2(c) and 12.4, by the Lessor Parties; provided, that for the avoidance of doubt, nothing in this Section 8.6 shall affect any automatic acceleration, right of acceleration or right to terminate the Lessor Parties Commitment exercised in accordance with the applicable Operative Agreements; and provided further, in all cases, the Agent shall allocate payments and other amounts received in accordance with Section 8.7. Except in the case of Excepted Payments and other rights expressly reserved by the Lessor pursuant to the Operative Agreements and subject to Section 12.4, the Agent is further appointed to provide notices under the Operative Agreements on behalf of the Lessor (as determined by the Agent, in its reasonable discretion with regard to matters concerning the Collateral) and to receive notices under the Operative Agreements on behalf of the Lessor with regard to matters concerning the Collateral. The Agent hereby accepts such appointments. The Agent ▇▇▇▇▇▇ further agrees promptly to provide notices and other documentation received from time to time from the Credit Parties to the Lessor Parties. The parties hereto hereby agree to the provisions contained in this Section 8.6. For the avoidance of doubt and notwithstanding anything contained in this Agreement or any other ~~Loan Document or related agreement or~~ Operative Agreement to the contrary, each Financing Party agrees that no Secured Party (other than the Agent) shall have the right to individually seek to realize upon any ~~document furnished hereunder or thereunder~~Lien granted by any Security Document, it being understood and agreed that such rights and remedies may be exercised solely by the Agent for the benefit for the Secured Parties upon the terms of the Operative Agreements; provided, if any action requires the participation of the Lessor (given the Lessor is the holder of legal title to the Property), then the Lessor shall participate in such action as reasonably requested by the Agent.

Appears in 1 contract

Sources: Fourth Amendment to Certain Operative Agreements (Big Lots Inc)

The Agent. Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the ~~Borrower~~ Loan Parties or any ~~Subsidiary~~ subsidiary of a Loan Party or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, ~~except~~ except, subject to the last paragraph of this Article VIII, discretionary rights and powers expressly contemplated by the Loan Documents that the 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇, the Borrower~~ any Loan Party or any of ~~the~~ its Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any capacity. The 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~~ wilfulwillful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇,~~ the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~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 (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~each~~ the 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 Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, the Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Issuing Bank and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing,~~ with the consent ~~of Level 3~~ (~~which consent shall~~ not to be unreasonably withheld or delayed) of the Borrower, to appoint a successor; provided that (i) during the existence and continuation of an Event of Default, no consent of the Borrower shall be required and (ii) any successor that shall also be the named secured party under any Collateral Document shall also be subject to the approval requirements, if any, of such Collateral Document. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the ~~Lenders~~Lenders and the Issuing Bank, appoint a successor Agent which shall be a ~~Lender or a~~ commercial bank ~~with an office in New York, New York,~~ or an Affiliate of ~~such Lender or~~ any such ~~bank~~commercial bank reasonably acceptable to the Borrower. If no successor Agent has been appointed pursuant to the immediately preceding sentence by the 30th day after the date such notice of resignation was given by such Agent, such Agent’s resignation shall become effective and the Required Lenders shall thereafter perform all the duties of such Agent hereunder and/or under any other Loan Document until such time, if any, as the Required Lenders appoint, with the consent of the Borrower (not to be unreasonably withheld or delayed) (so long as no Event of Default exists), a successor administrative agent and/or collateral agent, as the case may be. Any such resignation by such Agent hereunder shall also constitute, to the extent applicable, its resignation as an Issuing Bank and the Swingline Lender, in which case such resigning Agent (x) shall not be required to issue any further Letters of Credit or make any additional Swingline Loans hereunder and (y) shall maintain all of its rights as Issuing Bank or Swingline Lender, as the case may be, with respect to any Letters of Credit issued by it, or Swingline Loans made by it, prior to the date of such resignation. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrower and such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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 (a) acknowledges that it has received a copy of each Collateral Documents, (b) without limiting the foregoing, agrees that it will be bound by and will take no actions contrary to the provisions of any Collateral Documents and (c) acknowledges that the Agent will, and hereby authorizes the Agent to, enter into (and be a party to) the Collateral Documents and any intercreditor agreements on behalf of itself, such Lender and the holders of any future Specified Secured Indebtedness. The Lenders further acknowledge that, pursuant to the Collateral Documents, the Agent will have the sole right to proceed against the Collateral. In the event of a foreclosure by the Agent on any of the Collateral pursuant to a public or private sale or other disposition, any Secured Party may be the purchaser of any or all of such Collateral at any such sale or other disposition, and the Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by such Secured Party. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the foregoing provisions. The provisions of this paragraph are for the sole benefit of the Lenders and shall not afford any right to, or constitute a defense available to, any Loan Party. The Joint Lead Arrangers and joint bookrunners shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Agent and each Joint Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true: (i) such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the Commitments, (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such ▇▇▇▇▇▇’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, (iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or (iv) such other representation, warranty and covenant as may be agreed in writing between the Agent, in its sole discretion, and such Lender. In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Agent and each Joint Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that: (i) none of the Agent or any Joint Lead Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Agent under this Agreement, any Loan Document or any documents related to hereto or thereto), (ii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50.0 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E), (iii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the Obligations), (iv) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, the Letters of Credit, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and (v) no fee or other compensation is being paid directly to the Agent or any Joint Lead Arranger or any their respective Affiliates for investment advice (as opposed to other services) in connection with the Loans, the Letters of Credit, the Commitments or this Agreement. The Agent and each Joint Lead Arranger hereby informs the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, Agent or collateral agent

Appears in 1 contract

Sources: Loan Modification Agreement (TransDigm Group INC)

The Agent. Each of the ~~Lenders~~ Banks and the Issuing Bank hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Agent hereunder ~~shall also be a Lender, it~~ shall have the same rights and powers in its capacity as a ~~Lender~~ Bank as any other ~~Lender~~ Bank and may exercise the same as though it were not the Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that the Agent is required to exercise in writing as directed by the ~~Required Lenders~~ Majority Banks (or such other number or percentage of the ~~Lenders~~ Banks as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, 13.18) and (c) except as expressly set forth ~~in the Loan Documents~~herein, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇,~~ the Borrower or any of ~~the Subsidiaries of Level 3~~ its subsidiaries that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any capacity. The 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~~ Majority Banks (or such other number or percentage of the ~~Lenders~~ Banks as shall be necessary under the circumstances as provided in Section ~~9.02~~13.18) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇,~~ the Borrower or a ~~Lender~~Bank, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document~~this Agreement, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in ~~Article IV~~ Section 8 or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~each~~ the 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 Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, the Agent may resign at any time by notifying the ~~Lenders~~ Banks, the Issuing Bank and ~~Level 3~~the Borrower. Upon any such resignation, the ~~Required Lenders~~ Majority Banks shall have the right, ~~with~~in consultation with the Borrower, ~~so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ to appoint a successor. If no successor shall have been so appointed by the ~~Required Lenders~~ Majority Banks 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~~Banks and the Issuing Bank, appoint a successor Agent which shall be ~~a Lender or~~ a bank with an office in New York, New York, or an Affiliate of ~~such Lender or~~ any such bank. Upon ~~the~~ acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrower and such successor. After the Agent’s 's resignation hereunder, the provisions of this Article and Section ~~9.03~~ 13.12 shall continue in effect for the benefit of such retiring 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 Agent. Each ~~Lender~~ Bank acknowledges that it has, independently and without reliance upon the Agent or any other ~~Lender~~ Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each ~~Lender~~ Bank also acknowledges that it will, independently and without reliance upon the Agent or any other ~~Lender~~ Bank and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. The Sole Bookrunner, Co-Lead Arrangers and Co-Syndication Agents, in such capacities, shall have no duties or responsibilities, and shall incur no obligations or liabilities, under this Agreement. Each Bank acknowledges that it has not relied, and will not rely, on the Sole Bookrunner, any Co-Lead Arranger or Co-Syndication Agent in deciding to enter into this Agreement.

Appears in 1 contract

Sources: Revolving Credit Agreement (Mens Wearhouse Inc)

The Agent. ~~Each~~ (a) In order to expedite the transactions contemplated by this Agreement, Wachovia is hereby appointed to act as Agent on behalf of the Lenders and the Fronting Bank. Each Lender and the Fronting Bank hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such actions on ~~its~~ behalf of such Lender and the Fronting Bank and to exercise such powers as are specifically delegated to the Agent by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. In The Agent is hereby expressly authorized by the ~~event~~ Lenders and the ~~institution serving as~~ Fronting Bank, without hereby limiting any implied authority, (i) to receive on behalf of the Lenders and the Fronting Bank all payments of principal of and interest on the Outstanding Credits and all other amounts due to the Lenders and the Fronting Bank hereunder, and promptly to distribute to each Lender and the Fronting Bank, its proper share of each payment so received; (ii) to give notice on behalf of each Lender and the Fronting Bank to the Borrower of any Event of Default of which the Agent ~~hereunder shall also be a Lender, it shall have the same rights~~ has actual knowledge acquired in connection with its agency hereunder; and ~~powers in its capacity as a Lender as any other~~ (iii) to distribute to each Lender and ~~may exercise~~ the ~~same~~ Fronting Bank copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as ~~though it were not~~ received by the Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, . (b) Neither the Agent nor any of its directors, officers, employees or agents shall ~~not have~~ be liable as such for any ~~duty~~ action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ~~take~~ ascertain or to make any ~~discretionary action~~ inquiry concerning the performance or ~~exercise any discretionary powers, except discretionary rights and powers expressly contemplated~~ observance by the ~~Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage~~ Borrower of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ▇▇▇▇▇ ▇, the Borrower or any of the ~~Subsidiaries of Level 3 that is communicated to~~ terms, conditions, covenants or ~~obtained by the institution serving as Agent or any of its Affiliates~~ agreements contained in ~~any capacity~~this Agreement. The Agent shall not be ~~liable~~ responsible to the Lenders or the Fronting Bank for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agent may deem and treat the Lender or the Fronting Bank that makes any ~~action taken~~ Extension of Credit as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender or ~~not taken~~ the Fronting Bank, given as provided herein, of the transfer thereof. The Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by ~~it with the consent or at the request of~~ the Required Lenders (and, except as otherwise specifically provided herein, such instructions and any action or ~~such other number or percentage of~~ inaction pursuant thereto shall be binding on all the Lenders ~~as shall be necessary under~~ and the ~~circumstances as provided in Section 9.02) or~~ Fronting Bank. The Agent shall, in the absence of ~~its own gross negligence or willful misconduct. The Agent shall be deemed not to have~~ knowledge ~~of any Default unless and until written notice thereof is given~~ to the ~~Agent by ▇▇▇▇▇ ▇~~contrary, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall 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. ~~The~~ Neither the Agent ~~also may rely upon~~ nor any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ the Borrower on account of the failure of or delay in performance or breach by ~~telephone and believed~~ any Lender or the Fronting Bank of any of its obligations hereunder or to any Lender or the Fronting Bank on account of the failure of or delay in performance or breach by ~~it to be made by~~ any other Lender, the ~~proper Person, and shall not incur~~ Fronting Bank or the Borrower of any ~~liability for relying thereon~~of their respective obligations hereunder or in connection herewith. The Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for Level 3 or the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it 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 in accordance with the advice of ~~any~~ such counsel~~, accountants or experts.~~ . (c) The Lenders and the Fronting Bank hereby acknowledge that the Agent ~~may perform~~ shall not be under any ~~and all its duties and exercise its rights and powers~~ duty to take any discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Required Lenders. (d) Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Fronting Bank and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the ~~right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ right to appoint a ~~successor~~successor Agent acceptable to the Borrower. If no successor shall have been so appointed by the Required Lenders 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~~Lenders and the Fronting Bank, appoint a successor ~~Agent which shall be~~ Agent, having a ~~Lender or a bank with an office in New York, New York,~~ combined capital and surplus of at least $500,000,000 or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of ~~its~~ any appointment as Agent 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 ~~Agent,~~ Agent and the ~~retiring~~ Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor.~~ After the Agent’s 's resignation hereunder, the provisions of this Article VIII and Section ~~9.03~~ 9.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by it while it was acting as the Agent. (e) The Lenders may remove the Agent upon 30 days' prior notice by so notifying the Borrower and, in such event, the Lenders shall appoint a successor Agent acceptable to the Borrower. Either the Required Lenders or the Borrower may remove any Agent if (i) such Agent is adjudged bankrupt or insolvent or (ii) a receiver or other public officer takes charge of ~~them~~ such Agent or its property. If no successor Agent shall have been appointed by the Lenders and shall have accepted such appointment within 30 days after delivery by the Lenders of the notice required by the first sentence of this subsection (e), the Required Lenders or the Borrower may petition any court of competent jurisdiction for the appointment of a successor Agent. After the Agent's removal hereunder, the provisions of this Article VIII and Section 9.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Agent. (f) With respect to the Extensions of Credit made by it hereunder, the Agent, in its individual capacity and not as Agent, shall have the same rights and powers as any other Lender and may exercise the same as though it were not the Agent, and the Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not Agent. (g) Each Lender agrees (i) to reimburse the Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Total Commitment shall have been terminated, the amount of its percentage of Outstanding Credits) of any expenses incurred for the benefit of the Lenders or the Fronting Bank, in its role as Agent, including fees and expenses of counsel and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Fronting Bank, which shall not have been reimbursed by the Borrower and (ii) to indemnify and hold harmless the Agent and any of its 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 it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrower; provided that neither any Lender nor the Fronting Bank shall be liable to the 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 the Agent or any of its directors, officers, employees or agents. Each Lender and the Fronting Bank agrees that any allocation made in good faith by the Agent of expenses or other amounts referred to in this subsection shall be conclusive and binding for all purposes. (h) Each Lender and the Fronting Bank acknowledges that it has, independently and without reliance upon the ~~Agent~~ Agent, the Fronting Bank or any other ~~Lender~~ 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 and the Fronting Bank also acknowledges that it will, independently and without reliance upon the ~~Agent~~ Agent, the Fronting Bank or any other ~~Lender~~ 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.

Appears in 1 contract

Sources: Credit Agreement (Txu Corp /Tx/)

The Agent. Each of the Lenders hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇,~~ the Borrower or any of the Subsidiaries ~~of Level 3~~ that is communicated to or obtained by ~~the institution serving as Agent~~ it or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇,~~ the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth 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 satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by ~~the Agent~~it. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through ~~their~~ its respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 9.03 shall apply to any such sub-agent and to the Related Parties of ~~each~~ the Agent and any such sub-agent, and shall apply to ~~their~~ its respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Any Person serving as 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 an Agent, and such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not Agent hereunder. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, the Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with,~~ with the Borrower’s approval (so long as no ~~Default or~~ Event of Default ~~shall have~~ has occurred and be is continuing~~, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed~~) to appoint a successor. If no successor Agent shall have been so appointed ~~by the Required Lenders~~ 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, appoint a successor Agent which shall be a ~~Lender or a~~ bank with an office in New York, New York, or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrower and such successor. After ~~the~~ an Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Agent, its sub-–agents and ~~their~~ its respective Related Parties in respect of any actions taken or omitted to be taken by any of ~~them~~ it while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The parties agree that none of the Joint Lead Arrangers and Joint Bookrunners or the Syndication Agent referred to on the cover page of this Agreement shall, in its capacity as such, have any powers, duties or responsibilities under this Agreement or any other Loan Document.

Appears in 1 contract

Sources: Interim Credit Agreement (Broadridge Financial Solutions, Inc.)

The Agent. (a) Each ~~of the Lenders hereby irrevocably appoints the Agent as its agent and~~ Bank authorizes the Agent to ~~take such actions~~ exercise on its behalf ~~and to exercise such~~ the powers ~~as are~~ specifically delegated to the Agent ~~by the terms of the Loan Documents, together with such actions~~ herein and all other powers ~~as are~~ reasonably incidental thereto. ~~In the event the institution serving as~~ The relationship between the Agent ~~hereunder shall also be a Lender, it shall have the same rights~~ and ~~powers in its capacity as a Lender as any other Lender~~ each Bank is that of agent and ~~may exercise the same as though it were not the Agent~~principal only, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not nothing herein shall (b) Neither the Agent ~~hereunder. The Agent shall not have~~ nor any ~~duties~~ director, officer, employee or ~~obligations except those expressly set forth in the Loan Documents. Without limiting the generality~~ agent of ~~the foregoing, (a)~~ the Agent shall ~~not be subject~~ have any responsibility for (i) any failure of the Borrower to fulfill any ~~fiduciary~~ obligation under this Agreement or ~~other implied duties, regardless of whether a Default has occurred and is continuing~~the Grid Notes, (bii) the truth of any representation or warranty made by the Borrower in this Agreement or any other document delivered in connection with this Agreement or (iii) the validity or enforceability against the Borrower of this Agreement or the Grid Notes. (c) Neither the Agent nor any of the directors, officers, employees or agents of the 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 Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ▇▇▇▇▇ ▇, the Borrower or any of the Subsidiaries of Level 3 that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable responsibility for any action taken or ~~not~~ omitted to be taken ~~by it~~ in connection with this Agreement or 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 Grid Notes, except for gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ▇▇▇▇▇ ▇, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into . (id) 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 thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely ~~upon, and shall not incur~~ in good faith on 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 sent or signed ~~or sent~~ by the proper ~~Person. The Agent also may rely upon~~ person and on the opinions and statements of any ~~statement made to it orally~~ legal counsel or ~~by telephone and believed~~ other professional advisors selected by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for Level 3 or the Borrower), independent accountants and other experts selected by it, and shall not be liable to any other party for any ~~action taken or not taken by it in accordance with the advice~~ consequence of any such ~~counsel, accountants or experts. The Agent may perform any~~ reliance. (e) Each Bank acknowledges that it has made such independent investigation and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions evaluation of the ~~preceding paragraphs shall apply to any such sub-agent~~ creditworthiness of the Borrower as it has judged appropriate and ~~to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities~~ prudent in connection with the ~~syndication~~ making of its Aggregate Advances. Except as expressly provided herein, the Agent shall have no duty to provide any Bank with any credit or other information with respect to the Borrower. (f) The Agent and its affiliates may, without liability to account to any Bank therefor, make loans to, accept deposits from, and generally engage in any kind of business with the Borrower as though it were not the Agent. (g) The Agent may treat each Bank as the holder of each Grid Note delivered for such Bank pursuant to this Agreement for all purposes whatsoever unless and until the Agent receives notice, in form and substance satisfactory to it, of a transfer or assignment thereof and the written agreement of the ~~credit facilities provided for herein as well as activities as Agent. Subject~~ person or persons to whom such Grid Note has been transferred or assigned to be bound by the ~~appointment and acceptance of a successor as provided in this paragraph, the~~ terms hereof. (h) The Agent may resign at any time by ~~notifying~~ giving written notice to the ~~Lenders~~ Banks and ~~Level 3~~the Borrower or be removed with or without cause by the Majority Banks by notice to the Agent and the Borrower. Upon ~~any~~ the giving of either such ~~resignation~~notice, the ~~Required Lenders~~ Majority Banks shall have the ~~right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ right to appoint ~~a successor~~another Bank as successor Agent. If no a successor ~~shall have~~ Agent has not been so appointed ~~by the Required Lenders~~ and ~~shall have~~ accepted such appointment ~~within 30 days~~ on or before the sixtieth day after such notice is given, the retiring Agent ~~gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders,~~ may appoint a successor ~~Agent which shall be a Lender or a bank with an office in New York, New York, or an Affiliate of such Lender or any such bank~~Agent. Upon the acceptance of ~~its~~ appointment as Agent hereunder by a ~~successor~~successor Agent and notice of such acceptance to the Borrower and the Banks, such successor agent shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations ~~hereunder~~under this Agreement. ~~The fees payable by Level 3 and~~ Notwithstanding the ~~Borrower to a successor~~ resignation or removal of any retiring Agent ~~shall be the same as those payable to its predecessor unless otherwise agreed with such successor. After the Agent’s resignation~~ hereunder, the provisions of this ~~Article and~~ Section ~~9.03~~ 13 shall continue ~~in effect for~~ to inure to the benefit of such ~~retiring Agent, its sub-agents and their respective Related Parties~~ Agent in respect of any ~~actions~~ action taken or omitted to be taken by ~~any of them while it was acting~~ such Agent in its capacity as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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 thereundersuch.

Appears in 1 contract

Sources: Revolving Credit Agreement (New Jersey Resources Corp)

The Agent. ~~Each~~ (a) In order to expedite the transactions contemplated by this Agreement, Citibank is hereby appointed to act as Agent on behalf of the Lenders and the Fronting Banks. Each Lender and each Fronting Bank hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such actions on ~~its~~ behalf of such Lender and such Fronting Bank and to exercise such powers as are specifically delegated to the Agent by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. In The Agent is hereby expressly authorized by the ~~event~~ Lenders and the ~~institution serving as~~ Fronting Banks, without hereby limiting any implied authority, (i) to receive on behalf of the Lenders and the Fronting Banks all payments of principal of and interest on the Outstanding Credits and all other amounts due to the Lenders and the Fronting Banks hereunder, and promptly to distribute to each Lender and each Fronting Bank, its proper share of each payment so received; (ii) to give notice on behalf of each Lender and each Fronting Bank to the Borrowers of any Event of Default of which the Agent ~~hereunder shall also be a Lender, it shall have the same rights~~ has actual knowledge acquired in connection with its agency hereunder; and ~~powers in its capacity as a Lender as any other~~ (iii) to distribute to each Lender and ~~may exercise~~ each Fronting Bank copies of all notices, financial statements and other materials delivered by the ~~same~~ Borrowers pursuant to this Agreement as ~~though it were not~~ received by the Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, . (b) Neither the Agent nor any of its directors, officers, employees or agents shall ~~not have~~ be liable as such for any ~~duty~~ action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ~~take~~ ascertain or to make any ~~discretionary action~~ inquiry concerning the performance or ~~exercise any discretionary powers, except discretionary rights and powers expressly contemplated~~ observance by the ~~Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage~~ Borrowers of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ▇▇▇▇▇ ▇, the Borrower or any of the ~~Subsidiaries of Level 3 that is communicated to~~ terms, conditions, covenants or ~~obtained by the institution serving as Agent or any of its Affiliates~~ agreements contained in ~~any capacity~~this Agreement. The Agent shall not be ~~liable~~ responsible to the Lenders or the Fronting Banks for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agent may deem and treat the Lender or the Fronting Bank that makes any ~~action taken~~ Extension of Credit as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender or ~~not taken~~ such Fronting Bank, given as provided herein, of the transfer thereof. The Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by ~~it with the consent or at the request of~~ the Required Lenders (and, except as otherwise specifically provided herein, such instructions and any action or ~~such other number or percentage of~~ inaction pursuant thereto shall be binding on all the Lenders ~~as shall be necessary under~~ and the ~~circumstances as provided in Section 9.02) or~~ Fronting Banks. The Agent shall, in the absence of ~~its own gross negligence or willful misconduct. The Agent shall be deemed not to have~~ knowledge ~~of any Default unless and until written notice thereof is given~~ to the ~~Agent by ▇▇▇▇▇ ▇~~contrary, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall 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. ~~The~~ Neither the Agent ~~also may rely upon~~ nor any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ the Borrowers on account of the failure of or delay in performance or breach by ~~telephone and believed~~ any Lender or any Fronting Bank of any of its obligations hereunder or to any Lender or any Fronting Bank on account of the failure of or delay in performance or breach by ~~it to be made by the proper Person~~any other Lender, ~~and shall not incur~~ any ~~liability for relying thereon~~Fronting Bank or any Borrower of any of their respective obligations hereunder or in connection herewith. The Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for Level 3 or the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it 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 in accordance with the advice of ~~any~~ such counsel~~, accountants or experts.~~ . (c) The Lenders and the Fronting Banks hereby acknowledge that the Agent ~~may perform~~ shall not be under any ~~and all its duties and exercise its rights and powers~~ duty to take any discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Required Lenders. (d) Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Fronting Banks and ~~Level 3~~the Borrowers. Upon any such resignation, the Required Lenders shall have the ~~right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ right to appoint a ~~successor~~successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders 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~~Lenders and the Fronting Banks, appoint a successor ~~Agent which shall be~~ Agent, having a ~~Lender or a bank with an office in New York, New York,~~ combined capital and surplus of at least $500,000,000 or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of ~~its~~ any appointment as Agent 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 ~~Agent,~~ Agent and the ~~retiring~~ Agent shall be discharged from its duties and obligations hereunder~~. The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor~~. After the Agent’s resignation hereunder, the provisions of this Article and Section ~~9.03~~ 8.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as the Agent. (e) With respect to the Extensions of Credit made by it hereunder, the Agent, in its individual capacity and not as Agent, shall have the same rights and powers as any other Lender and may exercise the same as though it were not the Agent, and the Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not Agent. (f) Each Lender agrees (i) to reimburse the Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its percentage of Outstanding Credits) of any expenses incurred for the benefit of the Lenders or the Fronting Banks, in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Fronting Banks, which shall not have been reimbursed by the Borrowers and (ii) to indemnify and hold harmless the Agent and any of its 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 it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that neither any Lender nor any Fronting Bank shall be liable to the 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 the Agent or any of its directors, officers, employees or agents. Each Lender and each Fronting Bank agrees that any allocation made in good faith by the Agent of expenses or other amounts referred to in this subsection (f) shall be conclusive and binding for all purposes. (g) Each Lender and each Fronting Bank acknowledges that it has, independently and without reliance upon the Agent or any other Lender or Fronting Bank, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Fronting Bank also acknowledges that it will, independently and without reliance upon the Agent or any other Lender or Fronting Bank, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. (h) Neither Citigroup Global Markets Inc., by virtue of its designation as “Lead Arranger and Sole Bookrunner” on the cover page of this Agreement, nor any of Citibank, N.A., JPMorgan Chase Bank, N.A., Calyon New York Branch, Deutsche Bank AG New York Branch, and Wachovia Bank, National Association, by virtue of its designation as “Syndication Agents” on the cover page of this Agreement, shall have any duties, liabilities, obligations or responsibilities under this Agreement other than, if applicable, as a Lender or as a Fronting Bank hereunder.

Appears in 1 contract

Sources: Revolving Credit Agreement (Txu Us Holdings Co)

The Agent. Each of the Lenders hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ▇▇▇▇▇ ▇, the Borrower or any of the Subsidiaries of Level 3 that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ▇▇▇▇▇ ▇, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for Level 3 or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. ~~Subject to the appointment and acceptance of a successor as provided in this paragraph, the~~ The Agent may ~~resign~~ at any time give notice of its resignation by notifying the Lenders and Level 3. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its ~~resignation~~resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a Lender or a bank with an office in New York, New York, or an Affiliate of such Lender or any such bank. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date. With effect from the Resignation Effective Date, (a) the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any Collateral held by the Agent on behalf of the Lenders under any of the Loan Documents, the retiring Agent shall continue to hold such Collateral until such time as a successor Agent is appointed) and (b) except for any indemnity payments or other amounts then owed to the retiring Agent, all payments, communications and determinations provided to be made by, to or through the Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Agent as provided above. Upon the acceptance of ~~its~~ a successor’s appointment as Agent ~~hereunder by a successor~~hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring ~~Agent~~Agent (other than any rights to indemnity payments or other amounts owed to the retiring Agent as of the Resignation Effective Date), and the retiring Agent shall be discharged from all of its duties and obligations ~~hereunder~~hereunder or under the other Loan Documents. The fees payable by Level 3 ~~and the Borrower~~ to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Level 3 and such successor. After the retiring Agent’s resignation ~~hereunder~~hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them (i) while it the retiring Agent was acting as Agent and (ii) after such resignation or removal for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including (a) holding any Collateral on behalf of any of the Lenders and (b) in respect of any actions taken in connection with transferring the agency to any successor Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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.

Appears in 1 contract

Sources: Amendment Agreement (Level 3 Communications Inc)

The Agent. In order to expedite the transactions contemplated by this Agreement, BNY is hereby appointed to act as Agent for the Lenders. Each of the Lenders hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such actions on ~~its~~ their behalf and to exercise such powers as are specifically delegated to the Agent by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent ~~shall not have any duties or obligations except those~~ is hereby expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made authorized by the Lenders, without hereby limiting any implied authority, (i) to receive this Agreement and all closing documents on the Effective Date, (ii) to receive on behalf of the Lenders all payments of principal of and interest on the Advances and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender its proper share of each payment so received, (iii) to give notice on behalf of each of the Lenders to the Borrower of any Event of Default specified in this Agreement of which the Agent have actual knowledge acquired in connection with its agency hereunder and (civ) ~~except~~ to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as ~~expressly set forth in the Loan Documents,~~ received by the Agent (including notices of an occurrence of any Event of Default). Neither the Agent, BNY Capital Markets nor any of their respective directors, officers, employees or agents shall ~~not have any duty to disclose, and shall not~~ be liable ~~for the failure to disclose, any information relating to ▇▇▇▇▇ ▇, the Borrower or any of the Subsidiaries of Level 3 that is communicated to or obtained by the institution serving~~ as ~~Agent or any of its Affiliates in any capacity. The Agent shall not be liable~~ such for any action taken or ~~not taken~~ omitted by ~~it with the consent~~ any of them except for its, his 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~~ her own gross negligence or ~~willful~~ wilful misconduct~~. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ▇▇▇▇▇ ▇~~, ~~the Borrower~~ or ~~a Lender, and the Agent shall not~~ be responsible for ~~or have any duty to ascertain or inquire into (i)~~ any statement, warranty or representation ~~made in~~ herein or ~~in connection with any Loan Document, (ii)~~ the contents of any ~~certificate, report or other~~ document delivered ~~thereunder or~~ in connection ~~therewith~~herewith, ~~(iii)~~ or be required to ascertain or to make any inquiry concerning the performance or observance by Borrower of any of the ~~covenants~~terms, conditions, covenants or agreements ~~or other terms or conditions set forth~~ contained in ~~any Loan Document~~this Agreement. Neither the Agent nor BNY Capital Markets shall not be responsible to the Lenders for the due execution, ~~(iv) the~~ genuineness, validity, ~~enforceability,~~ enforceability or effectiveness ~~or genuineness~~ of ~~any Loan Document~~ this Agreement or any other ~~agreement, instrument~~ instruments or ~~document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent~~agreements. ~~As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral~~ The Agent shall ~~not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall~~ in all cases be fully protected in ~~so acting~~ acting, or refraining from acting~~) upon~~ , in accordance with written instructions signed by the ~~instructions of the Requisite Lenders~~Majority Lenders and, ~~and~~ except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding ~~upon~~ on all the Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent ~~shall~~ 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. ~~The~~ Neither the Agent ~~also may rely upon~~ nor any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ the Borrower on account of the failure of or delay in performance or breach by ~~telephone and believed~~ 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 ~~it to be made by~~ any other Lender or the ~~proper Person, and shall not incur~~ Borrower's or any ~~liability for relying thereon~~of their respective obligations hereunder or in connection herewith or therewith. The Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for Level 3 or the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it 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 in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. The Lenders hereby acknowledge that the Agent ~~may perform~~ shall be under no duty to take any ~~and all its duties and exercise its rights and powers~~ discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as AgentMajority Lenders. Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Borrower. Upon any such resignation, the ~~Required~~ Majority Lenders shall have the ~~right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ right to appoint a Lender as the successor. If no successor shall have been so appointed by the ~~Required~~ Majority Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor ~~Agent~~ Agent, which shall be ~~a Lender or~~ a 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 ~~such Lender or~~ any such bank. Upon the acceptance of ~~its~~ any appointment as Agent 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 ~~Agent,~~ Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor.~~ After the Agent’s 's resignation hereunder, the provisions of this Article and Section ~~9.03~~ 9.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Agent. With respect to the Advances made by it hereunder, the Agent, in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not the Agent and the Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or its Affiliates as if it were not the Agent. Each Lender agrees (a) to reimburse the Agent, on demand, in the amount of such Lender's pro rata share (based on its Commitment hereunder) of any expenses incurred for the benefit of the Lenders by the Agent, including fees, disbursements and other charges of counsel and compensation of agents paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Borrower and (b) to indemnify and hold harmless the Agent and any of its 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 that may be imposed on, incurred by or asserted against it in its capacity as the Agent, or any of them in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement, to the extent the same shall not have been reimbursed by the Borrower, provided that no Lender shall be liable to the 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 the Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other ~~Lender~~ Lender, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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~~hereunder.

Appears in 1 contract

Sources: Credit Agreement (Kroger Co)

The Agent. Each of the Lenders hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the ~~Borrower~~ Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇, the Borrower~~ any Loan Party or any of ~~the~~ its Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇,~~ the U.S. Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~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 (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the ~~Borrower~~Loan Parties), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~each~~ the 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 Agent. Each of the Lenders, the Issuers and the Loan Parties agree, that the Agent may, but shall not be obligated to, make the Approved Electronic Communications available to the Lenders, the Issuing Bank and the LC Facility Issuing Bank by posting such Approved Electronic Communications on IntraLinks™ or a substantially similar electronic platform chosen by the Agent to be its electronic transmission system (the “Approved Electronic Platform”). Although the Approved Electronic Platform and its primary web portal are secured with generally-applicable security procedures and policies implemented or modified by the Agent from time to time (including, as of the Closing Date, a dual firewall and a User ID/Password Authorization System) and the Approved Electronic Platform is secured through a single-user-per-deal authorization method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders, the Issuing Bank and the LC Facility Issuing Bank and the Loan Parties acknowledge and agree that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution. In consideration for the convenience and other benefits afforded by such distribution and for the other consideration provided hereunder, the receipt and sufficiency of which is hereby acknowledged, each of the Lenders, the Loan Parties and the Issuing Bank and the LC Facility Issuing Bank hereby approve distribution of the Approved Electronic Communications through the Approved Electronic Platform and understands and assumes the risks of such distribution. The Approved Electronic Communications and the Approved Electronic Platform are provided “as is” and “as available.” None of the Agent or any of its Affiliates or any of their respective officers, directors, employees, agents, advisors or representatives (the “Agent Affiliates”) warrant the accuracy, adequacy or completeness of the Approved Electronic Communications and the Approved Electronic Platform and each expressly disclaims liability for errors or omissions in the Approved Electronic Communications and the Approved Electronic Platform. No warranty of any kind, express, implied or statutory (including, without limitation, any warranty of merchantability, fitness for a particular purpose, noninfringement of third party rights or freedom from viruses or other code defects) is made by the Agent Affiliates in connection with the approved electronic communications or the approved electronic platform. Each of the Lenders, the Issuing Bank, the LC Facility Issuing Bank, and the Loan Parties agrees that the Agent may, but (except as may be required by applicable law) shall not be obligated to, store the Approved Electronic Communications on the Approved Electronic Platform in accordance with the Agent’s generally-applicable document retention procedures and policies. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, the Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Issuing Bank, the LC Facility Issuing Bank and ~~Level 3~~the U.S. Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing,~~ with the consent ~~of Level 3~~ (~~which consent shall~~ not to be unreasonably withheld or delayed) of the U.S. Borrower, to appoint a successor; provided that, during the existence and continuation of an Event of Default, no consent of the U.S. Borrower shall be required. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, the Issuing Bank and the LC Facility Issuing Bank appoint a successor Agent which shall be a ~~Lender or a~~ commercial bank ~~with an office in New York, New York,~~ or an Affiliate of ~~such Lender or~~ any such ~~bank~~commercial bank reasonably acceptable to the U.S. Borrower. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the ~~Borrower~~ Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrowers and such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 Agent. Any such resignation by the Agent hereunder shall, unless otherwise consented to by such Agent, also constitute the resignation of such Agent (and its Affiliates) as a Swingline Lender hereunder (in which case the U.S. Borrower may appoint a replacement Swingline Lender reasonably acceptable to the new Agent). Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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. The co-arrangers, joint bookrunners, co-syndication agents and the co-documentation agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Each Lender authorizes and directs the Agent to, upon the request of the U.S. Borrower, enter into any Receivables Facility Intercreditor Agreement with any agent under any Receivables Facility of the U.S. Borrower or any of its Restricted Subsidiaries and each Lender agrees to be bound by the terms thereof that are applicable to it thereunder. Any supplement to this agreement effecting any Subsidiary of the U.S. Borrower becoming an Additional Foreign Borrower may include “parallel debt” provisions or similar customary provisions for credit facilities of borrowers organized in the jurisdiction of organization of such Additional Foreign Borrower.

Appears in 1 contract

Sources: Amendment Agreement (MPBP Holdings, Inc.)

The Agent. (a) Each ~~of the Lenders~~ Secured Party hereby ~~irrevocably~~ appoints and authorizes the Agent as its agent hereunder and hereby further authorizes the Agent to appoint additional agents to act on its behalf and for the benefit of each Secured Party. Each Secured Party further authorizes the Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are delegated to the Agent by the terms ~~of the Loan Documents~~hereof and thereof, together with such ~~actions and~~ powers as are reasonably incidental thereto. In With respect to other actions which are incidental to the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money actions specifically delegated to ~~and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not~~ the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ▇▇▇▇▇ ▇, the Borrower or any of the Subsidiaries of Level 3 that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ▇▇▇▇▇ ▇, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to ~~exercise any discretion or~~ take any ~~action~~such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~instructions~~ direction of the ~~Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however,~~ Note Purchaser; provided that the ~~Administrative Agent and the Collateral~~ Agent shall not be required to take any action ~~that~~ hereunder if the taking of such action, in the reasonable determination of the Agent, shall be in violation of any Applicable Law or contrary to any provision of this Agreement or shall expose the Agent to liability hereunder or otherwise. In the event the Agent requests the consent of the Note Purchaser pursuant to the foregoing provisions and the Agent does not receive a consent (either positive or negative) from such Person within ten Business Days of such Person’s receipt of such request, then such Note Purchaser shall be deemed to have declined to consent to the relevant action. (b) The Borrower irrevocably authorizes the Agent and appoints the Agent as its attorney-in-fact to act on behalf of the Borrower (i) to file financing statements necessary or desirable in the ~~Administrative Agent or~~ Agent’s sole discretion to perfect and to maintain the perfection and priority of the interest of the Secured Parties in the Collateral ~~Agent in good faith believes exposes it~~ Portfolio and (ii) to ~~personal liability unless it receives an indemnification satisfactory to it from the Lenders~~ file a carbon, photographic or other reproduction of this Agreement or any financing statement with respect to the Collateral Portfolio as a financing statement in such ~~action~~ offices as the Agent in its sole discretion deems necessary or desirable to perfect and to maintain the perfection and priority of the interests of the Secured Parties in the Collateral Portfolio. This appointment is coupled with an interest and is irrevocable. (iic) is If the Borrower or the Servicer, as applicable, fails to perform any of its agreements or obligations under Section 5.01(t), Section 5.02(r) or Section 5.03(e), the Agent may (but shall not be required to) itself perform, or cause performance of, such agreement or obligation, and the expenses of the Agent incurred in connection therewith shall be payable by the Borrower or the Servicer (on behalf of the Borrower), as applicable, upon the Agent’s demand therefor. (d) Notwithstanding any provision to the contrary to elsewhere in this Agreement, the Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with the Note Purchaser, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or ~~applicable law. The~~ otherwise exist against the Agent. (e) Neither the Agent nor any of its directors, officers, agents or employees shall be ~~entitled~~ liable for any action taken or omitted to ~~rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed~~ be taken by it ~~to be genuine and to have been signed~~ or ~~sent by~~ them as Agent under or in connection with this Agreement or any of the ~~proper Person~~other Transaction Documents, except for its or their own gross negligence or willful misconduct. ~~The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by~~ Without limiting the ~~proper Person~~foregoing, ~~and shall not incur any liability for relying thereon. The Agent~~ the Agent: (i) may consult with legal counsel (~~who may be~~ including counsel for ~~Level 3~~ the Borrower or the ~~Borrower~~Transferor), independent public accountants and other experts selected by ~~it,~~ it and shall not be liable for any action taken or ~~not~~ omitted to be taken in good faith by it in accordance with the advice of ~~any~~ such counsel, accountants or experts; (ii) makes no warranty or representation and shall not be responsible for any statements, warranties or representations made in or in connection with this Agreement; (iii) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or any of the other Transaction Documents on the part of the Borrower, the Transferor, or the Servicer or to inspect the property (including the books and records) of the Borrower, the Transferor, or the Servicer; (iv) shall not be responsible for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any of the other Transaction Documents or any other instrument or document furnished pursuant hereto or thereto; and (v) shall incur no liability under or in respect of this Agreement or any of the other Transaction Documents by acting upon any notice (including notice by telephone), consent, certificate or other instrument or writing (which may be by facsimile) believed by it to be genuine and signed or sent by the proper party or parties. (f) Each Secured Party acknowledges that it has, independently and without reliance upon the Agent, or any of the Agent’s Affiliates, and based upon such documents and information as it has deemed appropriate, made its own evaluation and decision to enter into this Agreement and the other Transaction Documents to which it is a party. Each Secured Party also acknowledges that it will, independently and without reliance upon the Agent, or any of the Agent’s Affiliates, and based on such documents and information as it shall deem appropriate at the time, continue to make its own decisions in taking or not taking action under this Agreement and the other Transaction Documents to which it is a party. (g) The Note Purchaser agrees to indemnify the Agent ~~may perform~~ (to the extent not reimbursed by the Borrower or the Servicer) from and against any and all ~~its duties and exercise its rights and powers by~~ liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or ~~through~~ disbursements of any ~~one~~ kind or ~~more sub-agents appointed~~ nature whatsoever which may be imposed on, incurred by, or asserted against the Agent in any way relating to or arising out of this Agreement or any of the other Transaction Documents, or any action taken or omitted by the Agent hereunder or thereunder; provided that the Note Purchaser shall not be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Agent’s gross negligence or willful misconduct. ~~The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions~~ Without limitation of the ~~preceding paragraphs shall apply~~ foregoing, the Note Purchaser agrees to reimburse the Agent promptly upon demand for any ~~such sub~~out-~~agent and to~~ of-pocket expenses (including counsel fees) incurred by the ~~Related Parties of each~~ Agent ~~and any such sub-agent, and shall apply to their respective activities~~ in connection with the ~~syndication~~ administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement and the other Transaction Documents, to the extent that such expenses are incurred in the interests of or otherwise in respect of the ~~credit facilities provided~~ Note Purchaser hereunder and/or thereunder and to the extent that the Agent is not reimbursed for ~~herein as well as activities as Agent. Subject to~~ such expenses by the Borrower or the Servicer. (h) The Agent may resign at any time, effective upon the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, by giving at least five days’ written notice thereof to the ~~Agent~~ Note Purchaser and the Borrower and may ~~resign~~ be removed at any time with cause by ~~notifying~~ the ~~Lenders and Level 3~~Note Purchaser. Upon any such ~~resignation~~resignation or removal, the ~~Required Lenders~~ Note Purchaser shall ~~have~~ appoint a successor Agent. The Note Purchaser agrees that it shall not unreasonably withhold or delay its approval of the ~~right, with, so long as no Default or Event~~ appointment of ~~Default~~ a successor Agent; provided that any successor Agent which is not an Affiliate of Wachovia shall ~~have occurred and~~ be ~~continuing,~~ subject to the prior consent of ~~Level 3 (which consent shall not be unreasonably withheld or delayed) to appoint a successor~~the Borrower. If no such successor Agent shall have been so ~~appointed by the Required Lenders~~ appointed, and shall have accepted such ~~appointment~~ appointment, within 30 days after the retiring ~~Agent gives~~ Agent’s giving of notice of ~~its resignation~~resignation or the removal of the retiring Agent, then the retiring Agent may, on behalf of the ~~Lenders~~Secured Parties, appoint a successor Agent which successor Agent shall be either (i) a ~~Lender~~ commercial bank organized under the laws of the United States or of any state thereof and have a ~~bank with an office in New York, New York,~~ combined capital and surplus of at least $50,000,000 or (ii) an Affiliate of such ~~Lender or any such~~ a bank. Upon the acceptance of ~~its~~ any appointment as Agent hereunder by a ~~successor~~successor Agent, such successor Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations ~~hereunder. The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor~~under this Agreement. After ~~the~~ any retiring Agent’s resignation ~~hereunder~~or removal hereunder as Agent, the provisions of this Article ~~and Section 9.03~~ IX shall continue ~~in effect for the~~ to inure to its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties in respect of~~ as to any actions taken or omitted to be taken by ~~any of them~~ it while it was ~~acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the~~ 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~~ under this Agreement~~. Each Lender also acknowledges that it will, independently and without reliance upon~~ . (i) Unless specifically allocated to a specific Note Purchaser pursuant to the 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 terms of this Agreement, all amounts received by the Agent on behalf of the Note Purchaser shall be paid by the Agent to each Note Purchaser in accordance with such Note Purchaser’s respective Commitment Percentage, on the Business Day received by the Agent, unless such amounts are received after 12:00 noon on such Business Day, in which case the Agent shall use its reasonable efforts to pay such amounts to the Note Purchaser on such Business Day, but, in any ~~other Loan Document or related agreement or any document furnished hereunder or thereunder~~event, shall pay such amounts to such Note Purchaser not later than the following Business Day.

Appears in 1 contract

Sources: Note Purchase Agreement (Ares Capital Corp)

The Agent. In order to expedite the transactions contemplated by this Agreement, Citibank is hereby appointed to act as Agent on behalf of the Lenders. Each of the Lenders hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such actions on ~~its~~ behalf of such Lender and to exercise such powers as are specifically delegated to the Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent ~~shall not have any duties or obligations except those~~ is hereby expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made 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 Borrower of any Event of Default of which the Agent has actual knowledge acquired in connection with its agency hereunder; and (c) ~~except~~ to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as ~~expressly set forth in~~ received by the ~~Loan Documents,~~ Agent. Neither the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ▇▇▇▇▇ ▇, the Borrower or any of the Subsidiaries of Level 3 that is communicated to or obtained by the institution serving as Agent or nor any of its ~~Affiliates in any capacity. The Agent~~ directors, officers, employees or agents shall ~~not~~ be liable 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 (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~~ his own gross negligence or ~~willful~~ wilful misconduct~~. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ▇▇▇▇▇ ▇~~, ~~the Borrower~~ or ~~a Lender, and the Agent shall not~~ be responsible for ~~or have any duty to ascertain or inquire into (i)~~ any statement, warranty or representation ~~made in~~ herein or ~~in connection with any Loan Document, (ii)~~ the contents of any ~~certificate, report or other~~ document delivered ~~thereunder or~~ in connection ~~therewith~~herewith, ~~(iii)~~ or be required to ascertain or to make any inquiry concerning the performance or observance by the 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, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. ~~As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral~~ The Agent shall not be ~~required~~ responsible to ~~exercise~~ the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any ~~discretion~~ other Loan Document, instrument or ~~take any action, but~~ agreement. The Agent shall ~~be required to act or to refrain from acting (and shall~~ in all cases be fully protected in ~~so acting~~ acting, or refraining from acting~~) upon~~ , in accordance with written instructions signed by the ~~instructions of the Requisite Lenders~~Required Lenders and, ~~and~~ except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding ~~upon~~ on all the Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent ~~shall~~ 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. ~~The~~ Neither the Agent ~~also may rely upon~~ nor any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ the Borrower on account of the failure of or delay in performance or breach by ~~telephone and believed~~ 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 ~~it to be made by~~ any other Lender or the ~~proper Person, and shall not incur~~ Borrower of any ~~liability for relying thereon~~of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. The Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for Level 3 or the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it 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 in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. The Lenders hereby acknowledge that the Agent ~~may perform~~ shall be under no duty to take any ~~and all its duties and exercise its rights and powers~~ discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with~~after consultation with the Borrower, ~~so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a ~~Lender or a~~ 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 ~~such Lender or~~ any such bank. Upon the acceptance of ~~its~~ any appointment as Agent 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 ~~Agent,~~ Agent and the retiring Agent shall be discharged from its duties and obligations hereunder~~. The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor~~. After the Agent’s resignation hereunder, the provisions of this Article and Section ~~9.03~~ 9.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Agent. With respect to the Loans made by it hereunder, the Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not the Agent, and the Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Agent. Each Lender agrees (i) to reimburse the Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Total Commitment shall be terminated, the percentage it holds of the aggregate outstanding principal amount of the Loans and participations in Swingline Loans) of any expenses incurred for the benefit of the Lenders by the Agent, 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 Borrower and (ii) to indemnify and hold harmless the Agent and any of its directors, officers, employees, agents or advisors, 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 it in its capacity as the Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or any action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Borrower; provided that no Lender shall be liable to the Agent or any of its directors, officers, employees, agents or advisors 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 the Agent or any of its directors, officers, employees, agents or advisors. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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~~ the other Loan ~~Document or~~ Documents, any related agreement or any document furnished hereunder or thereunder. Each Lender hereby acknowledges that the Syndication Agent has no duties or responsibilities hereunder other than in its capacity as a Lender.

Appears in 1 contract

Sources: Five Year Competitive Advance and Revolving Credit Facility Agreement (Janus Capital Group Inc)

The Agent. (a) Each Lender and the Issuing Bank hereby irrevocably designate Bank of America as Agent under this Agreement and the other Loan Documents. The general administration of the Loan Documents shall be by the Agent. The Lenders and the Issuing Bank each hereby irrevocably ~~appoints~~ authorize the Agent as (i) to enter into the Loan Documents (including the Security Documents) to which it is a party and to perform its ~~agent~~ duties and ~~authorizes the Agent~~ obligations thereunder, together with all powers reasonably incidental thereto and (ii) at its discretion, to take or refrain from taking such actions as agent on its behalf and to exercise or refrain from exercising such powers under the Loan Documents and the Notes as are delegated by the terms hereof or thereof, as appropriate, together with all powers reasonably incidental thereto. The Agent shall have no duties or responsibilities except as set forth in this Agreement and the remaining Loan Documents, nor shall it have any fiduciary relationship with any Lender or the Issuing Bank and no implied covenants, responsibilities, duties, obligations, or liabilities shall be read into the Loan Documents or otherwise exist against the Agent. (b) Each Lender and the Issuing Bank hereby irrevocably agree and consent to all of the provisions of the Security Documents. All Collateral shall be held or administered by the Agent (or its duly-appointed agent) for its benefit and for the ratable benefit of the other Secured Parties. Any proceeds received by the Agent from the foreclosure, sale, lease or other disposition of any of the Collateral and any other proceeds received pursuant to the terms of the Security Documents or the other Loan ~~Documents~~Documents shall be applied as provided in Sections 2.18, ~~together with such actions and powers~~ 2.22, or 7.4 or 7.5, as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunderapplicable. The Agent shall ~~not~~ have ~~any~~ no duties or ~~obligations~~ responsibilities except ~~those expressly~~ as set forth in this Agreement and the remaining Loan Documents, nor shall it have any fiduciary relationship with any Lender, and no implied covenants, responsibilities, duties, obligations, or liabilities shall be read into the Loan ~~Documents.~~ Documents or otherwise exist against the Agent. (c) Without limiting the generality of the foregoing Section 8.1(a) and (b), for the purposes of creating a solidarité active in accordance with article 1541 of the Civil Code of Quebec between each Secured Party that is owed any Canadian Liabilities or UK Liabilities, taken individually, on the one hand, and the Agent, on the other hand, each Canadian Credit Party, each UK Credit Party and each such Secured Party acknowledge and agree with the Agent that such Secured Party and the Agent are hereby conferred the legal status of solidary creditors of the Canadian Credit Parties and the UK Credit Parties in respect of all Canadian Liabilities and UK Liabilities, present and future, owed by any Canadian Credit Party or any UK Credit Party to each such Secured Party and the Agent (collectively, for the purposes of this paragraph, the “solidary claim”). Accordingly, but subject (for the avoidance of doubt) to article 1542 of the Civil Code of Quebec, the Canadian Credit Parties are irrevocably bound towards the Agent and each such Secured Party in respect of the entire solidary claim of the Agent and such Secured Party. As a result of the foregoing, the Canadian Credit Parties and the UK Credit Parties confirm and agree that subject to Section 8.1(a) and (a) b), above, the rights of the Agent ~~shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred~~ and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage each of the ~~Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty~~ Secured Parties who are owed Canadian Liabilities or UK Liabilities from time to ~~take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory~~ time a party to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ▇▇▇▇▇ ▇, the Borrower this Agreement or any of the ~~Subsidiaries~~ other Loan Documents by way of ~~Level 3~~ assignment or otherwise are solidary and, as regards the Canadian Liabilities or UK Liabilities owing from time to time to each such Secured Party, each of the Agent and such Secured Party is entitled, when permitted pursuant to Section 8.1, to: (i) demand payment of all outstanding amounts from time to time in respect of the Canadian Liabilities or UK Liabilities; (ii) exact the whole performance of such Canadian Liabilities or UK Liabilities from the Canadian Credit Parties or the UK Credit Parties; (iii) benefit from the Agent’s Liens in the Collateral in respect of such Canadian Liabilities and UK Liabilities; (iv) give a full acquittance of such Canadian Liabilities and UK Liabilities (each Secured Party that is ~~communicated~~ owed Canadian Liabilities or UK Liabilities hereby agreeing to ~~or obtained~~ be bound by any such acquittance); and (v) exercise all rights and recourses under the Loan Documents with respect to those Canadian Liabilities and UK Liabilities. The Canadian Liabilities and UK Liabilities of the Canadian Credit Parties and/or the UK Credit Parties will be secured by the ~~institution serving~~ Agent’s Liens in the Collateral and the Agent and the Secured Parties who are owed Canadian Liabilities and/or UK Liabilities will have a solidary interest therein. Without limiting the foregoing or the powers of the Agent, for the purposes of holding any hypothec granted to the Attorney (as defined below) pursuant to the laws of the Province of Québec to secure the prompt payment and performance of any and all Obligations by any Credit Party, each of the Secured Parties hereby irrevocably appoints and authorizes the Agent and, to the extent necessary, ratifies the appointment and authorization of the Agent, to act as the hypothecary representative of the creditors as contemplated under Article 2692 of the Civil Code of Quebec (in such capacity, the “Attorney”), and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties that are conferred upon the Attorney under any related deed of hypothec. The Attorney 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 pursuant to any such deed of hypothec and Applicable Law, and (b) benefit from and be subject to all provisions hereof with respect to the Agent mutatis mutandis, including, without limitation, all such provisions with respect to the liability or ~~any~~ responsibility to and indemnification by the Secured Parties and Credit Parties. Any person who becomes a Secured Party shall, by its execution of ~~its Affiliates~~ an Assignment and Acceptance, be deemed to have consented to and confirmed the Attorney as the person acting as hypothecary representative holding the aforesaid hypothecs as aforesaid and to have ratified, as of the date it becomes a Secured Party, all actions taken by the Attorney in ~~any~~ such capacity. The ~~Agent shall not be liable for any action taken or not taken by it with the consent or at the request~~ substitution of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Agent ~~shall be deemed not~~ pursuant to have knowledge of any Default unless and until written notice thereof is given to the Agent by ▇▇▇▇▇ ▇, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for Level 3 or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor as provided in this paragraph, the Agent may resign at any time by notifying the Lenders and Level 3. Upon any such resignation, the Required Lenders shall have the right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a Lender or a bank with an office in New York, New York, or an Affiliate of such Lender or any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor. After the Agent’s resignation hereunder, the provisions of this ~~Article and~~ Section ~~9.03 shall continue in effect for~~ 8 also constitute the ~~benefit~~ substitution of such retiring 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 Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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 thereunderAttorney.

Appears in 1 contract

Sources: Credit Agreement (Genesco Inc)

The Agent. Each ~~of the Lenders~~ Lender hereby ~~irrevocably~~ appoints ~~the Agent as its agent~~ and authorizes ~~the~~ Agent to take such ~~actions~~ action on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to ~~the~~ Agent by the terms ~~of the Loan Documents~~hereof and thereof, together with such ~~actions and~~ powers as are reasonably incidental thereto. Each Lender hereby acknowledges that Agent shall not have by reason of this Agreement assumed a fiduciary relationship in respect of any Lender. In ~~the event the institution serving~~ performing its functions and duties under this Agreement, Agent shall act solely as ~~the Agent hereunder~~ agent of Lenders and shall ~~also be a Lender, it shall have the same rights and powers~~ not in its capacity as ~~a Lender as any other Lender and may exercise the same as though it were not the Agent~~such assume, ~~and such institution and its Affiliates may accept deposits from, lend money~~ or be deemed to ~~and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent shall not~~ have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to discloseassumed, any information relating to ▇▇▇▇▇ ▇, the Borrower or any of the Subsidiaries of Level 3 that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ▇▇▇▇▇ ▇, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or documentobligation toward, or ~~(v) the satisfaction~~ relationship of agency or trust with or for, any ~~condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent~~Borrower. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including without limitation enforcement ~~or collection~~and collection of the Notes), ~~the Administrative~~ Agent ~~and the Collateral Agent~~ may, but shall not be required to to, exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the ~~Requisite~~ Majority Lenders, whenever such instruction shall be requested by Agent or required hereunder, or a greater or lesser number of Lenders if so required hereunder, and such instructions shall be binding upon all Lenders, ; provided, ~~however,~~ that ~~the Administrative Agent and the Collateral~~ Agent shall ~~not~~ be ~~required~~ fully justified in failing or refusing to take any action ~~that (i) the Administrative~~ which exposes Agent to any liability or ~~the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii)~~ which is contrary to this ~~Agreement~~ Agreement, the other Loan Documents or applicable law~~. The~~ , unless Agent ~~shall be entitled~~ is indemnified 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 its satisfaction by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for Level 3 or the Borrower), independent accountants and other ~~experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform~~ Lenders against any and all ~~its duties~~ liability and ~~exercise its rights and powers~~ expense which it may incur by reason of taking or ~~through any one or more sub-agents appointed by the Agent. The Agent and~~ continuing to take any such ~~sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties~~action. ~~The exculpatory provisions~~ If Agent seeks the consent or approval of the ~~preceding paragraphs shall apply~~ Majority Lenders (or a greater or lesser number of Lenders as required in this Agreement), with respect to any ~~such sub-agent and~~ action hereunder, Agent shall send notice thereof to ~~the Related Parties of~~ each ~~Agent and any such sub-agent,~~ Lender and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor as provided in this paragraph, the Agent may resign notify each Lender at any time ~~by notifying~~ that the Majority Lenders ~~and Level 3. Upon any~~ (or such ~~resignation, the Required Lenders shall~~ greater or lesser number of Lenders) have ~~the right, with, so long as no Default~~ instructed Agent to act or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a Lender or a bank with an office in New York, New York, or an Affiliate of such Lender or any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged refrain from its duties and obligations hereunder. The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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 thereunderpursuant hereto.

Appears in 1 contract

Sources: Loan and Security Agreement (Neenah Foundry Co)

The Agent. Each of the Lenders and the Issuing Bank hereby irrevocably appoints ~~the~~ JPMorgan Chase Bank, N.A. as Administrative Agent ~~as its agent~~ and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Administrative Agent hereunder ~~shall also be a Lender, it~~ shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3~~Holdings, the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇~~Holdings, the Borrower or any of ~~the~~ its Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~▇▇▇▇▇ ▇~~Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. ~~As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the~~ The Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Issuing Bank and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with~~in consultation with the Borrower, ~~so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders~~Lenders and the Issuing Bank, appoint a successor Administrative Agent which shall be ~~a Lender or~~ a bank with an office in New York, New York, or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.

Appears in 1 contract

Sources: Credit Agreement (American Media Operations Inc)

The Agent. Each of the Lenders hereby irrevocably appoints ~~the Agent~~ HFG Healthco-4 LLC as its ~~agent~~ Agent and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms of hereof and the ~~Loan~~ other Program Documents, together with such actions and powers as are reasonably incidental thereto. In Each Lender authorizes and directs the ~~event~~ Agent to enter into this Agreement and the ~~institution~~ other Program Documents, for the ratable benefit and obligation of the Agent and the Lenders. Each Lender agrees that any action taken by the Agent or Required Lenders, as applicable, in accordance with the terms of this Agreement or the other Program Documents, and the exercise by the Agent or the Required Lenders, as applicable, of their respective powers set forth therein or herein, together with such other powers that are reasonably incidental thereto, shall be binding upon all of the Lenders. Each Person serving as the Agent hereunder ~~shall also be a Lender, it~~ and under the other Program Documents shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the ~~Agent,~~ Agent and each such ~~institution~~ Person and ~~its~~ their respective Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth herein or in the ~~Loan~~ other Program Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby or thereby that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~5.01), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth ~~in the Loan Documents~~herein, the Agent shall not have any duty to disclose, and shall not be liable for ~~the~~ any failure to disclose, any information relating to ~~▇▇▇▇▇ ▇~~the Borrower, the ~~Borrower~~ Primary Servicer or any of the ~~Subsidiaries of Level 3~~ Gurantors that is communicated to or obtained by ~~the institution~~ such Person serving as the Agent or any of its Affiliates in any capacity. The 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~~5.01) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. The Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇,~~ the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document~~this Agreement, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in ~~Article IV~~ Exhibit II or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the ~~advice~~ statements of any such counsel, accountants or experts. The Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~each~~ the 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 Agent. With respect to the release of Collateral, the Lenders hereby irrevocably authorize the Agent to release any Lien granted to or held by the Agent upon any property covered by this Agreement or the other Documents (i) upon termination or expiration of the Total Revolving Commitments, the payment and satisfaction of all Lender Debt; or (ii) constituting property being sold or disposed of in compliance with the provisions of the Program Documents (and the Agent may rely in good faith conclusively on any certificate stating that the property is being sold or disposed of in compliance with the provisions of the Program Documents, without further inquiry); provided, however, that (x) the Agent shall not be required to execute any release on terms which, in the Agent’s opinion, would expose the Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (y) such release shall not in any manner discharge, affect or impair any Liens upon all interests retained, all of which shall continue to constitute part of the property covered by the Program Documents. With respect to perfecting security interests in Collateral which, in accordance with the Orders, any order of the Bankruptcy Court in the Chapter 11 Cases, Article 9 of the Uniform Commercial Code or any comparable provision of any Lien perfection statute in any applicable jurisdiction, can be perfected only by possession, each Lender hereby appoints each other Lender its agent for the purpose of perfecting such interest. Should any Lender (other than the Agent) obtain possession of any such Collateral, such Lender shall notify the Agent, and, promptly upon the Agent’s request, shall deliver such Collateral to the Agent or in accordance with the Agent’s instructions. Each Lender agrees that it will not have any right individually to enforce or seek to enforce this Agreement or any other Document or to realize upon any Collateral for the Lender Debt, it being understood and agreed that such rights and remedies may be exercised only by or with the approval of the Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, the Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor ~~Agent which shall be a Lender or a bank with an office in New York, New York, or an Affiliate of such Lender or any such bank~~Agent. Upon the acceptance of its appointment as the Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ in writing between the Borrower and such successor. After the Agent’s resignation hereunder, the provisions of this Article and ~~Section 9.03~~ Sections 1.09 and 5.05 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as the Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any Related Party thereof or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agent or any Related Party thereof 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 acknowledges the potential conflict of interest of each other Lender as a result of Lenders holding disproportionate interests in the Revolving Loans, and expressly consents to and waives any claim based upon such conflict of interest. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

Appears in 1 contract

Sources: Loan and Security Agreement

The Agent. Each ~~of the Lenders hereby~~ Lender irrevocably appoints the Agent to act as ~~its~~ agent under this Agreement and ~~authorizes~~ the ~~Agent~~ Loan Documents for the benefit of such Lender, with full authority to take such ~~actions on its behalf~~ actions, and to exercise such ~~powers~~ powers, on behalf of the Lenders in respect of this Agreement and the Loan Documents as are herein and therein respectively delegated to the Agent ~~by the terms of the Loan Documents, together with such actions and powers~~ or as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to ~~and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder~~those delegated powers. The Agent in such capacity shall ~~not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality~~ be deemed to be an independent contractor of the ~~foregoing~~Lenders. Notwithstanding anything herein to the contrary, the Agent is hereby expressly and irrevocably authorized by each of the Lenders, as agent on behalf of itself and the other Lenders: (a) To receive on behalf of each of the ~~Agent shall not be subject~~ Lenders any payment or collection on account of the Obligations and to ~~any fiduciary or other implied duties, regardless~~ distribute to each Lender its Ratable Portion of ~~whether a Default has occurred~~ all such payments and ~~is continuing,~~ collections so received as provided in this Agreement; (b) To receive all documents and items to be furnished to the ~~Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by~~ Lenders under the Loan Documents ~~that~~ (nothing contained herein shall relieve the ~~Agent is~~ Borrower of any obligation to deliver any item directly to the Lenders to the extent expressly required ~~to exercise in writing~~ by the ~~Required Lenders~~ provisions of this Agreement); (c) To act or ~~such~~ refrain from acting in this Agreement and in the other ~~number or percentage~~ Loan Documents with respect to those matters so designated for the Agent; (d) To act as nominee for and on behalf of the Lenders ~~as shall be necessary~~ in and under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ▇▇▇▇▇ ▇, the Borrower or any of the Subsidiaries of Level 3 that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ▇▇▇▇▇ ▇, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan ~~Documents~~ Documents; (~~including enforcement or collection),~~ e) To arrange for the ~~Administrative Agent and~~ means whereby the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions funds of the ~~Requisite~~ Lenders are to be made available to the Borrower; (f) To distribute promptly to the Lenders, if required by the terms of this Agreement, all written information, requests, notices, payments, prepayments, documents and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it other items received from the ~~Lenders with respect to such action~~ Borrower or other Person; (iig) ~~is contrary to~~ To waive any provisions of this Agreement or ~~applicable law. The 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~~ the other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for Level 3 or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor as provided in this paragraph, the Agent may resign at any time by notifying the Lenders and Level 3. Upon any such resignation, the Required Lenders shall have the right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, Loan Documents on behalf of the ~~Lenders, appoint a successor Agent which shall be a Lender or a bank with an office in New York, New York, or an Affiliate of such Lender or any such bank. Upon~~ Lenders subject to the ~~acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties~~ requirement that certain of the ~~retiring Agent~~Lenders' consent be obtained in certain instances as provided in Section 11.20 or Section 11.21; (h) To deliver to the Borrower and other Persons, all requests, demands, approvals, notices, and consents received from any of the ~~retiring Agent shall be discharged from its duties~~ Lenders; (i) To exercise on behalf of each Lender all rights and ~~obligations hereunder. The fees payable by Level 3 and~~ remedies of the ~~Borrower to a successor Agent shall be~~ Lenders upon the ~~same~~ occurrence of any Event of Default and/or Default specified in this Agreement and/or in any of the other Loan Documents or applicable Laws; (j) To execute any of the Loan Documents on behalf of the Lenders as ~~those payable to its predecessor unless otherwise agreed with such successor. After~~ the ~~Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect~~ secured party for the benefit of such retiring 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 Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent ~~or any~~ and the Lenders; and (k) To take such other ~~Lender and based on such documents and information~~ actions 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~~ may be requested by the 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 thereunderrequisite Lenders.

Appears in 1 contract

Sources: Asset Based Loan and Security Agreement (Mazel Stores Inc)

Appears in 1 contract

Sources: Revolving Credit Agreement (Sunpower Corp)

The Agent. In order to expedite the transactions contemplated by this Agreement, The Chase Manhattan Bank is hereby appointed to act as Agent on behalf of the Banks. Each of the ~~Lenders~~ Banks, and each transferee of any Bank, hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such actions on ~~its~~ behalf of such Bank or transferee and to exercise such powers as are specifically delegated to the Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent ~~shall not have~~ is hereby expressly authorized by the Banks, without hereby limiting any ~~duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing~~implied authority, (a) to receive on behalf of the ~~Agent shall not be subject~~ Banks all payments of principal of and interest on the Loans and all other amounts due to ~~any fiduciary or other implied duties~~the Banks hereunder, ~~regardless~~ and promptly to distribute to each Bank its proper share of ~~whether a Default has occurred and is continuing,~~ each payment so received; (b) to give notice on behalf of each of the Banks to the Borrower of any Event of Default specified in this Agreement of which the 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 Agent is required to exercise has actual knowledge acquired in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, connection with its agency hereunder; and (c) ~~except~~ to distribute to each Bank copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as ~~expressly set forth in~~ received by the ~~Loan Documents,~~ Agent. Neither the Agent nor any of its directors, officers, employees or agents shall ~~not have any duty to disclose, and shall not~~ be liable as such for any action taken or omitted by any of them except for its or his own gross negligence or wilful misconduct, or be 61 57 responsible for any statement, warranty or representation herein or the ~~failure~~ contents of any document delivered in connection herewith, or be required to ~~disclose,~~ ascertain or to make any ~~information relating to ▇▇▇▇▇ ▇,~~ inquiry concerning the performance or observance by the Borrower or of any of the ~~Subsidiaries of Level 3 that is communicated to~~ terms, conditions, covenants or ~~obtained by the institution serving as Agent or any of its Affiliates~~ agreements contained in any ~~capacity~~Loan Document. The Agent shall not be ~~liable~~ responsible to the Banks for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Banks and, except as otherwise specifically provided herein, such instructions and 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~~ inaction pursuant thereto shall be ~~necessary under~~ binding on all the ~~circumstances as provided in Section 9.02) or~~ Banks. The Agent shall, in the absence of ~~its own gross negligence or willful misconduct. The Agent shall be deemed not to have~~ knowledge ~~of any Default unless and until written notice thereof is given~~ to the ~~Agent by ▇▇▇▇▇ ▇~~contrary, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall 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. ~~The~~ Neither the Agent ~~also may rely upon~~ nor any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ the Borrower on account of the failure of or delay in performance or breach by ~~telephone and believed~~ any Bank of any of its obligations hereunder or to any Bank on account of the failure of or delay in performance or breach by ~~it to be made by~~ any other Bank or the ~~proper Person, and shall not incur~~ Borrower of any ~~liability for relying thereon~~of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. The Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for Level 3 or the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it 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 in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. The Banks hereby acknowledge that the Agent ~~may perform~~ shall be under no duty to take any ~~and all its duties and exercise its rights and powers~~ discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as AgentRequired Banks. Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the ~~Lenders~~ Banks and ~~Level 3~~the Borrower. Upon any such resignation, the Required ~~Lenders~~ Banks shall have the ~~right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ right to appoint a successor. If no successor shall have been so appointed by the Required ~~Lenders~~ Banks 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~~Banks, appoint a successor Agent which shall be ~~a Lender or~~ a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an 62 58 Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of ~~its~~ any appointment as Agent 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 ~~Agent,~~ Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor.~~ After the Agent’s 's resignation hereunder, the provisions of this Article and Section ~~9.03~~ 9.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Agent. With respect to the Loans made by it hereunder, the Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Bank and may exercise the same as though it were not the Agent, and the Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Agent. Each ~~Lender~~ Bank agrees (i) to reimburse the Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder) of any expenses incurred for the benefit of the Banks by the Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Banks, which shall not have been reimbursed by the Borrower and (ii) to indemnify and hold harmless the Agent and any of its 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 it in its capacity as the Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or any action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Borrower; provided that no Bank shall be liable to the 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 the Agent or any of its directors, officers, employees or agents. Each Bank acknowledges that it has, independently and without reliance upon the Agent or any other ~~Lender~~ Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each ~~Lender~~ Bank also acknowledges that it will, independently and without reliance upon the Agent 63 59 or any other ~~Lender~~ Bank and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any other Loan ~~Document or~~ Document, any related agreement or any document furnished hereunder or thereunder.

Appears in 1 contract

Sources: 5 Year Competitive Advance and Revolving Credit Facility Agreement (Scripps E W Co /De)

The Agent. Each of the Lenders hereby irrevocably appoints ~~the Agent~~ theAgent (together with its Affiliates and branches) as its agent and authorizes the Agent to take ~~such actions~~ suchactions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such ~~powers as are~~ ▇▇▇▇▇▇ ▇▇▇▇▇ delegated to the Agent by the terms of the Loan Documents, together with such actions and ~~powers as~~ powersas are reasonably incidental thereto~~. In the event the institution serving as the~~ .The Agent ~~hereunder shall also be a Lender, it~~ shall have the same rights and powers in its capacity as a Lender as any ~~other Lender~~ otherLender and may exercise the same as though it were not the Agent, and ~~such institution~~ the Agent and its Affiliates ~~may accept~~ mayaccept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the ~~Borrower or~~ Loan Partiesor any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the Agent hereunder. .The Agent shall also act as the “collateral agent” under the Loan Documents, and eachof the Lenders (including in its capacities as a holder of Secured Hedging Obligations and Secured CashManagement, as “collateral agent”) and any co-agents, sub-agents and attorneys-in-fact appointed by theAgent for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) grantedunder the Collateral Documents, or for exercising any rights and remedies thereunder at the direction ofthe Agent, shall be entitled to the benefits of all provisions of this Article VIII and Article IX (as thoughsuch co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents)as if set forth in full herein with respect thereto.The Agent shall not have any duties or obligations except those expressly set forth in ~~the Loan~~ theLoan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject ~~to any~~ toany fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (~~b) the~~ b)the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, ,except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent ~~is required~~ isrequired to exercise in writing as directed by the Required Lenders (or such other number or ~~percentage~~ percentage-112- of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) ~~except as~~ exceptas expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall ~~not be~~ notbe liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇, the Borrower~~ any Loan Party or any of ~~the Subsidiaries of Level 3 that~~ its Subsidiariesthat is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any capacity. .The Agent shall not be liable for any action taken or not taken by it with the consent or at the request ~~of the~~ ofthe Required Lenders (or such other number or percentage of the Lenders as shall be necessary under ~~the circumstances~~ thecircumstances as provided in Section 9.02) or in the absence of its own gross negligence or ~~willful misconduct.~~ willfulmisconduct as determined by a court of competent jurisdiction by a final and nonappealable judgment.The Agent shall be deemed not to have knowledge of any Default unless and until written notice ~~thereof is~~ thereofis given to the Agent by ~~▇▇▇▇▇ ▇,~~ the Borrower or a Lender, and the Agent shall not be responsible for or ~~have any~~ haveany duty to ascertain or inquire into (i) any statement, warranty or representation made in or ~~in connection~~ inconnection with any Loan Document, (ii) the contents of any certificate, report or other ~~document delivered thereunder~~ documentdelivered hereunder or in connection ~~therewith~~with any Loan Document, (iii) the performance or observance ~~of any~~ ofany of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) ~~the validity~~thevalidity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, ,instrument or document, or (v) the value or sufficiency of the Collateral or the creation, perfection orpriority of Liens on the Collateral or the existence of the Collateral, or (vi) the satisfaction of ~~any condition~~ anycondition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt ~~of items~~ ofitems expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. .The Agent shall be entitled to rely upon, and shall not incur any liability for ~~relying upon~~relyingupon, any notice, request, certificate, consent, statement, instrument, document or other writing ~~believed by~~ believedby it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely ~~upon any~~ uponany statement made to it orally or by telephone and believed by it to be made by the proper Person, ~~and shall~~ andshall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may ~~be counsel~~ becounsel for ~~Level 3 or~~ the ~~Borrower~~Loan Parties), independent accountants and other experts selected by it, and shall not ~~be liable~~ beliable for any action taken or not taken by it in accordance with the advice of any such counsel, ,accountants or experts. .The Agent may perform any and all its duties and exercise its rights and powers by ~~or through~~ orthrough any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent ~~may perform~~ mayperform any and all its duties and exercise its rights and powers through their respective Related Parties. .The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to ~~the Related~~ theRelated Parties of ~~each~~ the Agent and any such sub-agent, and shall apply to their respective activities ~~in connection~~ inconnection with the syndication of the credit facilities provided for herein as well as activities as Agent.Each of the Lenders and the Loan Parties agree that the Agent may, but shall not beobligated to, make the Approved Electronic Communications available to the Lenders by posting suchApproved Electronic Communications on IntraLinks™ or a substantially similar electronic platformchosen by the Agent to be its electronic transmission system (the “Approved Electronic Platform”).Although the Approved Electronic Platform and its primary web portal are secured withgenerally-applicable security procedures and policies implemented or modified by the Agent from timeto time (including, as of the Closing Date, a dual firewall and a User ID/Password Authorization System)and the Approved Electronic Platform is secured through a single-user-per-deal authorization methodwhereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each ofthe Lenders and the Loan Parties acknowledge and agree that the distribution of material through anelectronic medium is not necessarily secure and that there are confidentiality and other risks associatedwith such distribution. In consideration for the convenience and other benefits afforded by suchdistribution and for the other consideration provided hereunder, the receipt and sufficiency of which ▇▇▇▇▇▇▇▇ acknowledged, each of the Lenders and the Loan Parties hereby approves distribution of the-113- Approved Electronic Communications through the Approved Electronic Platform and understands andassumes the risks of such distribution.The Approved Electronic Communications and the Approved Electronic Platform areprovided “as is” and “as available”. None of the Agent or any of its Affiliates or any of their respectiveofficers, directors, employees, agents, advisors or representatives (the “Agent Affiliates”) warrant theaccuracy, adequacy or completeness of the Approved Electronic Communications and the ApprovedElectronic Platform and each expressly disclaims liability for errors or omissions in the ApprovedElectronic Communications and the Approved Electronic Platform. No warranty of any kind, express,implied or statutory (including, without limitation, any warranty of merchantability, fitness for aparticular purpose, noninfringement of third party rights or freedom from viruses or other code defects)is made by the Agent Affiliates in connection with the approved electronic communications or theapproved electronic platform.Each of the Lenders and the Loan Parties agrees that the Agent may, but (except as maybe required by applicable law) shall not be obligated to, store the Approved Electronic Communicationson the Approved Electronic Platform in accordance with the Agent’s generally-applicable documentretention procedures and policies.Subject to the appointment and acceptance of a successor Agent as provided in ~~this paragraph~~thisparagraph, the Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Borrower. Upon any ~~such resignation~~suchresignation, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing,~~ with the consent ~~of Level 3~~ (~~which consent shall~~ not to be unreasonably ~~withheld or~~ withheldor delayed) of the Borrower, to appoint a successor; provided that, during the existence and continuationof an Event of Default, no consent of the Borrower shall be required. If no successor shall have been ~~so appointed~~ soappointed by the Required Lenders and shall have accepted such appointment within ~~30 days after~~ thirty (30) daysafter the retiring Agent gives notice of its resignation, then the retiring Agent ~~may,~~ may on behalf of ~~the Lenders,~~ theLenders appoint a successor Agent which shall be a ~~Lender or a~~ commercial bank ~~with an office in New York, New York,~~ or an Affiliate of ~~such Lender or~~ any ~~such bank~~suchcommercial bank reasonably acceptable to the Borrower. Upon the acceptance of its appointment ~~as Agent~~ asAgent hereunder by a successor, such successor shall succeed to and become vested with all the rights, ,powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from ~~its duties~~ itsduties and obligations hereunder. The fees payable by ~~Level 3 and~~ the Borrower to a successor Agent shall be ~~the same~~ thesame as those payable to its predecessor unless otherwise agreed ~~with such successor~~between the Borrower and suchsuccessor. After the Agent’s resignation hereunder, the provisions of this Article VIII and Section ~~9.03 shall~~ 9.03shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective ~~Related Parties~~ RelatedParties in respect of any actions taken or omitted to be taken by any of them while it was acting ~~as Agent~~asAgent. Each Lender acknowledges that it has, independently and without reliance upon theAgent, any Joint Lead Arranger, any Co-Manager, the Documentation Agent, the Syndication Agent ~~or any~~ orany other Lender or a Related Party of any of the foregoing and based on such documents ~~and information~~ andinformation as it has deemed appropriate, made its own credit analysis and decision to enter into ~~this Agreement~~thisAgreement. Each Lender also acknowledges that it will, independently and without reliance upon theAgent, any Joint Lead Arranger, any Co-Manager, the Documentation Agent, the Syndication Agent ~~or any~~ orany other Lender or a Related Party of any of the foregoing and based on such documents ~~and information~~ andinformation as it shall from time to time deem appropriate, continue to make its own decisions in ~~taking or~~ takingor not taking action under or based upon this Agreement, any other Loan Document or related ~~agreement or~~ agreementor any document furnished hereunder or ~~thereunder.~~thereunder.-114-

Appears in 1 contract

Sources: Incremental Facility Amendment to Credit Agreement (Clean Harbors Inc)

The Agent. In order to expedite the transactions contemplated by this Agreement, JPMorgan Chase Bank is hereby appointed to act as Agent on behalf of the Lenders. Each of the Lenders hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such actions on ~~its~~ behalf of such Lender and to exercise such powers as are specifically delegated to the Agent by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent ~~shall not have~~ is hereby expressly authorized by the Lenders, without hereby limiting any ~~duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing~~implied authority, (a) to receive on behalf of the ~~Agent shall not 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) ~~the 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 Agent is required to exercise in writing by the Required Lenders (or such other number or percentage give notice on behalf of each of the Lenders ~~as shall be necessary under~~ to the ~~circumstances as provided~~ Borrower of any Event of Default specified in ~~Section 9.02), and shall not have any duty to take any action or exercise any powers that would result~~ this Agreement of which the Agent has actual knowledge acquired in ~~the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders,~~ connection with its agency hereunder; and (c) ~~except~~ to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as ~~expressly set forth in~~ received by the ~~Loan Documents,~~ Agent. Neither the Agent nor any of its directors, officers, employees or agents shall ~~not have any duty to disclose, and shall not~~ be liable to any Lender as such for any action taken or omitted by any of them except for its or his own gross negligence or wilful misconduct, or be responsible for any statement, warranty or representation herein or the ~~failure~~ contents of any document delivered in connection herewith, or be required to ~~disclose,~~ ascertain or to make any ~~information relating to ▇▇▇▇▇ ▇,~~ inquiry concerning the performance or observance by the Borrower or of any of the ~~Subsidiaries~~ terms, conditions (except delivery to the Agent of ~~Level 3 that is communicated~~ the items required by Section 4.02 to be delivered to it), covenants or ~~obtained by the institution serving as Agent or any of its Affiliates~~ agreements contained in ~~any capacity~~this Agreement. The Agent shall not be ~~liable~~ responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Majority Lenders or the Required Lenders, as the case may be, and, except as otherwise specifically provided herein, such instructions and 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~~ inaction pursuant thereto shall be ~~necessary under~~ binding on all the ~~circumstances as provided in Section 9.02) or~~ Lenders. The Agent shall, in the absence of ~~its own gross negligence or willful misconduct. The Agent shall be deemed not to have~~ knowledge ~~of any Default unless and until written notice thereof is given~~ to the ~~Agent by ▇▇▇▇▇ ▇~~contrary, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall 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. ~~The~~ Neither the Agent ~~also may rely upon~~ nor any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ the Borrower on account of the failure of or delay in performance or breach by ~~telephone and believed~~ 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 ~~it to be made by~~ any other Lender or the ~~proper Person, and shall not incur~~ Borrower of any ~~liability for relying thereon~~of their respective obligations hereunder or in connection herewith. The Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for Level 3 or the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it 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 in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. The Lenders hereby acknowledge that the Agent ~~may perform~~ shall be under no duty to take any ~~and all its duties and exercise its rights and powers~~ discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the ~~right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ right to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a ~~Lender or a~~ bank with an office in New York, New York, ~~or an Affiliate~~ having a combined capital and surplus of ~~such Lender or any such bank~~at least $500,000,000. Upon the acceptance of ~~its~~ any appointment as Agent 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 ~~Agent,~~ Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor.~~ After the Agent’s 's resignation hereunder, the provisions of this Article and Section ~~9.03~~ 9.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Agent. With respect to the Loans made by it hereunder, the Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not the Agent, and the Agent may accept deposits from, lend money to and generally engage in any kind of business with the Borrower as if it were not the Agent. (i) to reimburse the Agent, on demand, in the amount of its pro rata share (based on its Commitment, or, after the Commitments shall have expired or been terminated, the amount of its outstanding Loans hereunder) of any expenses incurred for the benefit of the Lenders by the Agent, including reasonable 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 Borrower and (ii) to indemnify and hold harmless the Agent and any of its 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 it in its capacity as the Agent or any of them in any way relating to or arising out of this Agreement or any action taken or omitted by it or any of them under this Agreement, to the extent the same shall not have been reimbursed by the Borrower; provided that no Lender shall be liable to the Agent or any other indemnitee 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 the Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agent or any other Lender and based on such documents and ~~information~~ informa- tion as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. Notwithstanding any other provision herein, each Lender acknowledges that the Agent is not acting as an agent of the Borrower and that the Borrower will not be responsible for any acts or failures to act on the part of the Agent.

Appears in 1 contract

Sources: 364 Day Revolving Credit Agreement (Goodyear Tire & Rubber Co /Oh/)

The Agent. In order to expedite the transactions contemplated by this Agreement, The Chase Manhattan Bank is hereby appointed to act as Agent on behalf of the Lenders and the Issuing Bank. Each of the Lenders hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such actions on ~~its~~ behalf of such Lender or Issuing Bank and to exercise such powers as are specifically delegated to the Agent by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent ~~shall not have~~ is hereby expressly authorized by the Lenders and the Issuing Bank, without hereby limiting any ~~duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing~~implied authority, (a) to receive on behalf of the ~~Agent shall not be subject~~ Lenders and the Issuing Bank all payments of principal of and interest on the Loans, all payments in respect of L/C Disbursements and all other amounts due to ~~any fiduciary~~ the Lenders hereunder, and promptly to distribute to each Lender or ~~other implied duties, regardless~~ Issuing Bank its proper share of ~~whether a Default has occurred and is continuing,~~ each payment so received; (b) ~~the Agent shall not have any duty~~ to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage give notice on behalf of each of the Lenders ~~as shall be necessary under~~ to the ~~circumstances as provided~~ Borrower of any Event of Default specified in ~~Section 9.02), and shall not have any duty to take any action or exercise any powers that would result~~ this Agreement of which the Agent has actual knowledge acquired in ~~the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders,~~ connection with its agency hereunder; and (c) ~~except~~ to distribute to each Lender copies of all notices, financial statements and other materials delivered pursuant to this Agreement as ~~expressly set forth in~~ received by the ~~Loan Documents,~~ Agent. Neither the Agent nor any of its directors, officers, employees or agents shall ~~not have any duty to disclose, and shall not~~ be liable to the Lenders as such for any action taken or omitted by any of them except for its or his own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the ~~failure to disclose~~contents of any document delivered in connection herewith (other than any statement, ~~any information~~ representation or warranty relating to ~~▇▇▇▇▇ ▇~~the Agent or relating to the functions of the Agent hereunder), or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrower or of any of the ~~Subsidiaries of Level 3 that is communicated to~~ terms, conditions, covenants or ~~obtained by the institution serving as Agent or any of its Affiliates~~ agreements contained in any ~~capacity~~Loan Document. The Agent shall not be ~~liable~~ responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any ~~action taken~~ other Loan Documents or ~~not taken~~ other instruments or agreements. The Agent may deem and treat the payee of any note referred to in Section 2.07 as the owner thereof for all purposes hereof until it shall have received from the payee of such note notice, given as provided herein, of the transfer thereof. The Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by ~~it with the consent or at the request of~~ the Required Lenders (and, except as otherwise specifically provided herein, such instructions and any action or ~~such other number or percentage of the Lenders as~~ inaction pursuant thereto shall be ~~necessary under~~ binding on all the ~~circumstances as provided in Section 9.02) or~~ Lenders. The Agent shall, in the absence of ~~its own gross negligence or willful misconduct. The Agent shall be deemed not to have~~ knowledge ~~of any Default unless and until written notice thereof is given~~ to the ~~Agent by ▇▇▇▇▇ ▇~~contrary, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall 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. ~~The~~ Neither the Agent ~~also may rely upon~~ nor any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ the Borrower on account of the failure of or delay in performance or breach by ~~telephone and believed~~ any Lender or Issuing Bank of any of its obligations hereunder or to any Lender or Issuing Bank on account of the failure of or delay in performance or breach by ~~it to be made by~~ any other Lender or Issuing Bank or the ~~proper Person, and shall not incur~~ Borrower of any ~~liability for relying thereon~~of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. The Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for Level 3 or the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it 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 in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. The Lenders hereby acknowledge that the Agent ~~may perform~~ shall be under no duty to take any ~~and all its duties and exercise its rights and powers~~ discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the ~~right, with, so long as no Default or Event of Default shall have occurred and be continuing,~~ right to appoint a successor subject to the written consent of ~~Level 3~~ the Borrower to such successor (which consent ~~shall~~ will not be unreasonably ~~withheld or delayed) to appoint a successor~~withheld). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 ~~days~~ Business Days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, after conferring with the Borrower, appoint a successor Agent which shall be a ~~Lender or a~~ bank with ~~an office~~ offices in New York, New ~~York~~York and London, England, having a combined capital and surplus of at least $500,000,000 or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of ~~its~~ any appointment as Agent 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 ~~Agent,~~ Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor.~~ After the Agent’s 's resignation hereunder, the provisions of this Article and Section ~~9.03~~ 9.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Agent. With respect to the Loans made by it hereunder, the Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not the Agent, and the Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Agent. Each Lender agrees (i) to reimburse the Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, on its Commitment most recently in effect) of any expenses incurred for the benefit of the Lenders by the Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which the Borrower shall be obligated to reimburse under Section 9.05 but which shall not have been reimbursed by the Borrower and (ii) to indemnify and hold harmless the Agent and any of its 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 it in its capacity as the Agent or any of them in any way relating to or arising out of the Agent's role under this Agreement or any other Loan Document or any action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Borrower; provided, however, that no Lender shall be liable to the 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 the Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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~~ Document, any related agreement or any document furnished hereunder or thereunder.

Appears in 1 contract

Sources: Credit Facilities Agreement (Choice Hotels International Inc /De)

The Agent. ~~Each~~ (a) In order to expedite the transactions contemplated by this Agreement, CS is hereby appointed to act as Agent on behalf of the Lenders and the Fronting Banks. Each Lender and each Fronting Bank hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such actions on ~~its~~ behalf of such Lender and such Fronting Bank and to exercise such powers as are specifically delegated to the Agent by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. In The Agent is hereby expressly authorized by the ~~event~~ Lenders and the ~~institution serving as~~ Fronting Banks, without hereby limiting any implied authority, (i) to receive on behalf of the Lenders and the Fronting Banks all payments of principal of and interest on the Outstanding Credits and all other amounts due to the Lenders and the Fronting Banks hereunder, and promptly to distribute to each Lender and each Fronting Bank, its proper share of each payment so received; (ii) to give notice on behalf of each Lender and each Fronting Bank to the Borrower of any Event of Default of which the Agent ~~hereunder shall also be a Lender, it shall have the same rights~~ has actual knowledge acquired in connection with its agency hereunder; and ~~powers in its capacity as a Lender as any other~~ (iii) to distribute to each Lender and ~~may exercise~~ each Fronting Bank copies of all notices, financial statements and other materials delivered by the ~~same~~ Borrower pursuant to this Agreement as ~~though it were not~~ received by the Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, . (b) Neither the Agent nor any of its directors, officers, employees or agents shall ~~not have~~ be liable as such for any ~~duty~~ action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ~~take~~ ascertain or to make any ~~discretionary action~~ inquiry concerning the performance or ~~exercise any discretionary powers, except discretionary rights and powers expressly contemplated~~ observance by the ~~Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage~~ Borrower of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ▇▇▇▇▇ ▇, the Borrower or any of the ~~Subsidiaries of Level 3 that is communicated to~~ terms, conditions, covenants or ~~obtained by the institution serving as Agent or any of its Affiliates~~ agreements contained in ~~any capacity~~this Agreement. The Agent shall not be ~~liable~~ responsible to the Lenders or the Fronting Banks for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agent may deem and treat the Lender or the Fronting Bank that makes any ~~action taken~~ Extension of Credit as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender or ~~not taken~~ such Fronting Bank, given as provided herein, of the transfer thereof. The Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by ~~it with the consent or at the request of~~ the Required Lenders (and, except as otherwise specifically provided herein, such instructions and any action or ~~such other number or percentage of~~ inaction pursuant thereto shall be binding on all the Lenders ~~as shall be necessary under~~ and the ~~circumstances as provided in Section 9.02) or~~ Fronting Banks. The Agent shall, in the absence of ~~its own gross negligence or willful misconduct. The Agent shall be deemed not to have~~ knowledge ~~of any Default unless and until written notice thereof is given~~ to the ~~Agent by ▇▇▇▇▇ ▇~~contrary, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall 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. ~~The~~ Neither the Agent ~~also may rely upon~~ nor any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ the Borrower on account of the failure of or delay in performance or breach by ~~telephone and believed~~ any Lender or any Fronting Bank of any of its obligations hereunder or to any Lender or any Fronting Bank on account of the failure of or delay in performance or breach by ~~it to be made by~~ any other Lender, any Fronting Bank or the ~~proper Person, and shall not incur~~ Borrower of any ~~liability for relying thereon~~of their respective obligations hereunder or in connection herewith. The Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for Level 3 or the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it 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 in accordance with the advice of ~~any~~ such counsel~~, accountants or experts.~~ . (c) The Lenders and the Fronting Banks hereby acknowledge that the Agent ~~may perform~~ shall not be under any ~~and all its duties and exercise its rights and powers~~ duty to take any discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Required Lenders. (d) Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Fronting Banks and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the ~~right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ right to appoint a ~~successor~~successor Agent acceptable to the Borrower. If no successor shall have been so appointed by the Required Lenders 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~~Lenders and the Fronting Banks, appoint a successor ~~Agent which shall be~~ Agent, having a ~~Lender or a bank with an office in New York, New York,~~ combined capital and surplus of at least $500,000,000 or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of ~~its~~ any appointment as Agent 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 ~~Agent,~~ Agent and the ~~retiring~~ Agent shall be discharged from its duties and obligations hereunder~~. The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor~~. After the Agent’s resignation hereunder, the provisions of this Article and Section ~~9.03~~ 8.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as the Agent. (e) With respect to the Extensions of Credit made by it hereunder, the Agent, in its individual capacity and not as Agent, shall have the same rights and powers as any other Lender and may exercise the same as though it were not the Agent, and the Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not Agent. (f) Each Lender agrees (i) to reimburse the Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its percentage of Outstanding Credits) of any expenses incurred for the benefit of the Lenders or the Fronting Banks, in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Fronting Banks, which shall not have been reimbursed by the Borrower and (ii) to indemnify and hold harmless the Agent and any of its 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 it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrower; provided that neither any Lender nor any Fronting Bank shall be liable to the 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 the Agent or any of its directors, officers, employees or agents. Each Lender and each Fronting Bank agrees that any allocation made in good faith by the Agent of expenses or other amounts referred to in this subsection (f) shall be conclusive and binding for all purposes. (g) Each Lender and each Fronting Bank acknowledges that it has, independently and without reliance upon the Agent or any other Lender or Fronting Bank, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Fronting Bank also acknowledges that it will, independently and without reliance upon the Agent or any other Lender or Fronting Bank, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. (h) Neither ▇▇▇▇▇▇ Brothers Inc. nor Credit Suisse Securities (USA) LLC, by virtue of its designation as a “Joint Lead Arranger and Bookrunners” on the cover page of this Agreement, shall have any duties, liabilities, obligations or responsibilities under this Agreement other than, if applicable, as the Agent, or as a Lender or as a Fronting Bank hereunder.

Appears in 1 contract

Sources: Revolving Credit Agreement (Txu Energy Co LLC)

The Agent. ~~Each~~ In order to expedite the transactions contemplated by this Agreement, JPMorgan Chase is hereby appointed to act as Agent on behalf of the Lenders and the Fronting Banks. Each Lender and each Fronting Bank hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such actions on ~~its~~ behalf of such Lender and such Fronting Bank and to exercise such powers as are specifically delegated to the Agent by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent ~~shall not have~~ is hereby expressly authorized by the Lenders and the Fronting Banks, without hereby limiting any ~~duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing~~implied authority, (ai) ~~the Agent shall not be subject~~ to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage receive on behalf of the Lenders and the Fronting Banks all payments of principal of and interest on the Outstanding Credits and all other amounts due to the Lenders and the Fronting Banks hereunder, and promptly to distribute to each Lender and each Fronting Bank, its proper share of each payment so received; (ii) to give notice on behalf of each Lender and each Fronting Bank to the Borrowers of any Event of Default of which the Agent has actual knowledge acquired in connection with its agency hereunder; and (iii) to distribute to each Lender and each Fronting Bank copies of all notices, financial statements and other materials delivered by the Borrowers pursuant to this Agreement as received by the Agent. Neither the Agent nor any of its directors, officers, employees or agents shall be ~~necessary under the circumstances~~ liable as ~~provided in Section 9.02), and shall not have any duty to take~~ such for any action taken or ~~exercise~~ omitted by any ~~powers that would result~~ of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the ~~incurrence by it of costs~~ performance or ~~expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made~~ observance by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ▇▇▇▇▇ ▇, the Borrower or Borrowers of any of the ~~Subsidiaries of Level 3 that is communicated to~~ terms, conditions, covenants or ~~obtained by the institution serving as Agent or any of its Affiliates~~ agreements contained in ~~any capacity~~this Agreement. The Agent shall not be ~~liable~~ responsible to the Lenders or the Fronting Banks for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agent may deem and treat the Lender or the Fronting Bank that makes any ~~action taken~~ Extension of Credit as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender or ~~not taken~~ such Fronting Bank, given as provided herein, of the transfer thereof. The Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by ~~it with the consent or at the request of~~ the Required Lenders (and, except as otherwise specifically provided herein, such instructions and any action or ~~such other number or percentage of~~ inaction pursuant thereto shall be binding on all the Lenders ~~as shall be necessary under~~ and the ~~circumstances as provided in Section 9.02) or~~ Fronting Banks. The Agent shall, in the absence of ~~its own gross negligence or willful misconduct. The Agent shall be deemed not to have~~ knowledge ~~of any Default unless and until written notice thereof is given~~ to the ~~Agent by ▇▇▇▇▇ ▇~~contrary, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall 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. ~~The~~ Neither the Agent ~~also may rely upon~~ nor any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ the Borrowers on account of the failure of or delay in performance or breach by ~~telephone and believed~~ any Lender or any Fronting Bank of any of its obligations hereunder or to any Lender or any Fronting Bank on account of the failure of or delay in performance or breach by ~~it to be made by the proper Person~~any other Lender, ~~and shall not incur~~ any ~~liability for relying thereon~~Fronting Bank or any Borrower of any of their respective obligations hereunder or in connection herewith. The Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for Level 3 or the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it 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 in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. The Lenders and the Fronting Banks hereby acknowledge that the Agent ~~may perform~~ shall not be under any ~~and all its duties and exercise its rights and powers~~ duty to take any discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Fronting Banks and ~~Level 3~~the Borrowers. Upon any such resignation, the Required Lenders shall have the ~~right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ right to appoint a ~~successor~~successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders 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~~Lenders and the Fronting Banks, appoint a successor ~~Agent which shall be~~ Agent, having a ~~Lender or a bank with an office in New York, New York,~~ combined capital and surplus of at least $500,000,000 or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of ~~its~~ any appointment as Agent 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 ~~Agent,~~ Agent and the ~~retiring~~ Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor.~~ After the Agent’s 's resignation hereunder, the provisions of this Article and Section ~~9.03~~ 8.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as the Agent. With respect to the Extensions of Credit made by it hereunder, the Agent, in its individual capacity and not as Agent, shall have the same rights and powers as any other Lender and may exercise the same as though it were not the Agent, and the Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not Agent. Each Lender agrees (i) to reimburse the Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its percentage of Outstanding Credits) of any expenses incurred for the benefit of the Lenders or the Fronting Banks, in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Fronting Banks, which shall not have been reimbursed by the Borrowers and (ii) to indemnify and hold harmless the Agent and any of its 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 it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that neither any Lender nor any Fronting Bank shall be liable to the 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 the Agent or any of its directors, officers, employees or agents. Each Lender and each Fronting Bank agrees that any allocation made in good faith by the Agent of expenses or other amounts referred to in this paragraph shall be conclusive and binding for all purposes. Each Lender and each Fronting Bank acknowledges that it has, independently and without reliance upon the Agent or any other Lender or Fronting Bank, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Fronting Bank also acknowledges that it will, independently and without reliance upon the Agent or any other Lender or Fronting Bank, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. Neither ▇.▇. ▇▇▇▇▇▇ Securities, Inc. or Citigroup Global Markets Inc., by virtue of their designation as "Joint Lead Arrangers and Bookrunners" on the cover page of this Agreement, nor ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA or Bank One, NA, by virtue of their designation as "Co-Documentation Agents" on the cover page of this Agreement, nor Wachovia Bank, National Association or Citibank, N.A., by virutue of their designation as "Co-Syndication Agents" on the cover page of this Agreement, shall have any duties, liabilities, obligations or responsibilities under this Agreement other than, if applicable, as a Lender or as a Fronting Bank hereunder.

Appears in 1 contract

Sources: Revolving Credit Agreement (Txu Corp /Tx/)

The Agent. Each of the Lenders and the L/C Issuer hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. In Except with respect to the ~~event~~ consent rights of the ~~institution~~ Borrower relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Agent, the Lenders and the L/C Issuer, and the Borrower shall not have rights as a third party beneficiary of any of such provisions. The bank serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the ~~Borrower~~ Guarantor or any Subsidiary or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that the 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth ~~in the Loan Documents~~herein, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇,~~ the ~~Borrower~~ Guarantor or any of ~~the~~ its Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇~~any Obligor, a Lender or the ~~Borrower or a Lender~~L/C Issuer, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document~~this Agreement, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in herein or the occurrence of any ~~Loan Document~~Default, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer unless the Agent shall have received notice to the contrary from such Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The Agent may consult with legal counsel (who may be counsel for ~~Level 3~~ the Borrower or the ~~Borrower~~Guarantor), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs~~ this Article shall apply to any such sub-agent and to the Related Parties of ~~each~~ the 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 Agent. ~~Subject to the appointment and acceptance of a successor as provided in this paragraph, the~~ The Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the L/C Issuer and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing,~~ with the consent of ~~Level 3~~ the Borrower (~~which consent shall~~ not to be unreasonably withheld or delayed) ), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the ~~Lenders~~Lenders and the L/C Issuer, ~~appoint~~ appoint, with the consent of the Borrower (not to be unreasonably withheld or delayed), a successor Agent which shall be ~~a Lender or~~ a bank with an office in New York, New York, or an Affiliate of ~~such Lender or~~ any such bank; provided that if the Agent shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Agent shall be discharged from its duties and obligations hereunder and (b) all payments, communications and determinations provided to be made by, to or through the Agent shall instead be made by or to each Lender and the L/C Issuer directly until such time as the Required Lenders appoint, with the consent of the Borrower (not to be unreasonably withheld or delayed), a successor Agent hereunder. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrower and such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 Agent. Any resignation by Bank of America as Agent pursuant to this Section shall also constitute its resignation as L/C Issuer and Banc of America Securities Limited’s resignation as Swing Line Lender. Upon the acceptance of a successor’s appointment as Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect to such Letters of Credit. Each Lender and the L/C Issuer acknowledges that it has, independently and without reliance upon the 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 and the L/C Issuer also acknowledges that it will, independently and without reliance upon the 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. It is agreed that the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.

Appears in 1 contract

Sources: Credit Agreement (Sherwin Williams Co)

The Agent. Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇,~~ the Borrower or any of ~~the~~ its Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. The Agent shall not be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇,~~ the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor the Agent as provided in this paragraph, the Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Issuing Bank and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with~~in consultation with the Borrower, ~~so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the ~~Lenders~~Lenders and the Issuing Bank, appoint a successor Agent which shall be ~~a Lender or~~ a bank with an office in New York, New York, or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrower and such successor. After the Agent’s 's resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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.

Appears in 1 contract

Sources: Credit Agreement (Topps Co Inc)

The Agent. In order to accomplish the transactions contemplated by this Agreement, The Bank of New York, Asset Solutions Division is hereby appointed to act as Agent on behalf of the Lenders. Each of the Lenders ~~hereby~~ and each subsequent holder of any Term Loan Note by its acceptance thereof, irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such ~~actions~~ action on its behalf and to exercise such powers hereunder and under the Security Documents and other Loan Documents as are specifically delegated to or required of the Agent by the terms of hereof and the ~~Loan Documents,~~ terms thereof together with such ~~actions and~~ powers as are reasonably incidental thereto. Neither the Agent nor any of its directors, officers, members, managers, employees or agents shall be liable as such for any action taken or omitted to be taken by it or them hereunder or under any of the Security Documents and other Loan Documents or in connection herewith or therewith (a) at the direction, request or with the approval of the Required Term Loan A Lenders (or in the event that the Term Loan A is paid in full, the Required Term Loan B Lenders) or the Required Lenders, as the context requires (or, if otherwise specifically required hereunder or thereunder, the consent of all the Lenders, or all of the Term Loan A Lenders or all of the Term Loan B Lenders) or (b) in the absence of its or their own gross negligence or willful misconduct. The Agent shall not have or be deemed to have any fiduciary duty to any Lender. The Agent is hereby expressly authorized on behalf of the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of each of the Lenders any payment of principal of or interest on the Term Loan Notes outstanding hereunder and all other amounts accrued hereunder paid to the Agent, and promptly to distribute to each Lender its proper share of all payments and insurance proceeds so received, (b) to distribute to each Lender copies of all notices, agreements and other material as provided for in this Agreement or in the Security Documents and other Loan Documents as received by such Agent and (c) to take all actions with respect to this Agreement and the Security Documents and other Loan Documents as are specifically delegated to the Agent. With respect to the release of Collateral, the Lenders hereby irrevocably authorize the Agent to release any Lien granted to or held by the Agent upon any property covered by this Agreement or the other Loan Documents (i) upon termination or expiration of the Commitments, the payment and satisfaction of all obligations arising with respect to the Term Loans, all fees and expenses, or (ii) constituting property being sold or disposed of in compliance with the provisions of the Loan Documents (and the Agent may rely in good faith conclusively on any certificate 123 stating that the property is being sold or disposed of in compliance with the provisions of the Loan Documents, without further inquiry); provided, however, that (x) the Agent shall not be required to execute any release on terms which, in the Agent's opinion, would expose the Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (y) such release shall not in any manner discharge, affect or impair any Liens upon all interests retained, all of which shall continue to constitute part of the property covered by the Loan Documents. In the event that (a) the ~~institution serving as~~ Borrower fails to pay when due the principal of or interest on any Term Loan Note or any fee payable hereunder or (b) the Agent ~~hereunder~~ receives written notice of or otherwise becomes aware of the occurrence of a Default or an Event of Default, the Agent shall ~~also be a Lender~~promptly give written notice thereof to the Lenders, and shall take such action with respect to such Event of Default or other condition or event as it shall be directed to take by the Required Term Loan A Lenders (but shall not be required to take any such actions which violate any law or any term of this Agreement or any other Loan Document); provided, however, that, unless and until the Agent shall have received such directions, the ~~same~~ Agent may take such action or refrain from taking such action hereunder or under the Security Documents or other Loan Documents with respect to a Event or Event of Default as it shall deem advisable in the best interests of the Lenders. The Agent shall not be responsible in any manner to any of the Lenders for the effectiveness, enforceability, perfection, value, genuineness, validity or due execution of this Agreement, the Term Loan Notes or any of the other Loan Documents or Collateral or any other agreements or certificates, requests, financial statements, notices or opinions of counsel or for any recitals, statements, warranties or representations contained herein or in any such instrument or be under any obligation to ascertain or inquire as to the performance or observance of any of the terms, provisions, covenants, conditions, agreements or obligations of this Agreement or any of the other Loan Documents or any other agreements on the part of the Borrower and, without limiting the generality of the foregoing, the Agent shall, in the absence of Knowledge to the contrary, be entitled to accept any certificate furnished pursuant to this Agreement or any of the other Loan Documents as conclusive evidence of the facts stated therein and shall be entitled to rely on any note, notice, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document which it believes in good faith to be genuine and correct and to have been signed or sent by the proper Person or Persons. It is understood and agreed that the Agent may exercise its rights and powers under other agreements and instruments to which it is or may be a party, and engage in ~~its capacity as a Lender as any~~ other ~~Lender and may exercise~~ transactions with the ~~same~~ Borrower, as though it were not Agent of the ~~Agent~~Lenders hereunder. Neither the Agent nor any of its directors, officers, members, managers, employees or agents shall have any responsibility to the Borrower on account of the failure 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 the Borrower of any of its obligations hereunder or in connection herewith. The Agent may consult with legal counsel selected by it in connection with matters arising under this Agreement or any of the other Loan Documents and any action taken or suffered in good faith by it in accordance with the opinion of such ~~institution~~ counsel shall be full justification and protection to it. The Agent may exercise any of its powers and rights and perform any duty under this Agreement or any of the other Loan Documents through agents or attorneys. The Agent and the Borrower may deem and treat the payee of any Term Loan Note as the holder thereof until written notice of transfer shall have been delivered as provided herein by such payee to the Agent and the Borrower. The Agent and/or its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3~~the Borrower, ~~the Borrower~~ or ~~any Subsidiary or Affiliate~~ other affiliate thereof as if it were not the Agent. (i) to reimburse the Agent ~~hereunder. The Agent shall not have any duties or obligations except those expressly set forth~~ in the ~~Loan Documents. Without limiting~~ amount of such Lender's pro rata share (based on its Commitment hereunder) of any expenses incurred for the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage benefit of the Lenders ~~as shall be necessary under~~ by the ~~circumstances as provided in Section 9.02)~~Agent, including counsel fees and ~~shall not have any duty to take any action or exercise any powers that would result in the incurrence by it~~ compensation of ~~costs or expenses unless arrangements satisfactory to it to ensure the prompt payment~~ agents paid for services rendered on behalf of ~~all such costs or expenses shall have been made by~~ the Lenders, not reimbursed by the Borrower and (cii) ~~except as expressly set forth~~ to indemnify and hold harmless the Agent and any of its directors, officers, members, managers, employees or agents, on demand, in the ~~Loan Documents~~amount of its pro rata share, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it or such directors, officers, members, managers, employees or agents in its or their capacity as, or acting on behalf of, the Agent ~~shall not have~~ in any ~~duty to disclose, and shall not be liable for the failure to disclose, any information~~ way relating to ~~▇▇▇▇▇ ▇, the Borrower~~ or arising out of this Agreement or any of the ~~Subsidiaries~~ other Loan Documents or any action taken or omitted by it or any of ~~Level 3 that is communicated~~ them under this Agreement or any of the other Loan Documents, to ~~or obtained~~ the extent not reimbursed by the ~~institution serving as~~ Borrower; provided, however, that no Lender shall be liable to the Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgment, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of the Agent or any of its ~~Affiliates~~ directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the Agent, or any 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 and any other Loan Document to which such Lender is party. Each Lender also acknowledges that it will, independently and without reliance upon the Agent, or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own decisions in ~~any capacity. The Agent shall not be liable for any action taken~~ taking or not ~~taken by it with the consent~~ taking action under or ~~at the request of the Required Lenders (or such~~ based upon this Agreement, any other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ▇▇▇▇▇ ▇, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, ~~(ii) the contents of~~ any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document related agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for Level 3 or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agentfurnished hereunder. Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Borrower. Upon any such resignation, the ~~Required~~ Lenders shall have the ~~right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ right to appoint a ~~successor~~successor Agent. If no successor Agent shall have been so appointed by ~~the Required~~ such Lenders 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 with the consent of the Borrower, which shall not be unreasonably withheld or delayed, appoint a successor Agent which shall be a ~~Lender~~ bank or ~~a bank~~ other financial institution with an office (or an Affiliate with an office) in New York, New York, ~~or an Affiliate~~ having a combined capital and 125 surplus of ~~such Lender or any such bank~~at least $500,000,000. Upon the acceptance of ~~its~~ any appointment as Agent hereunder by a ~~successor~~successor bank, such successor shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Agent,~~ Agent and the retiring Agent shall be discharged from its duties and obligations ~~hereunder. The fees payable by Level 3~~ hereunder and under each of the ~~Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor~~other Loan Documents. After ~~the~~ any Agent’s 's resignation hereunder, the provisions of this Article ~~and Section 9.03~~ shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Agent. ~~Each Lender acknowledges~~ The Lenders hereby acknowledge that ~~it has, independently and without reliance upon~~ the Agent shall be under no duty to take any discretionary action permitted to be taken by the Agent pursuant to the provisions of this Agreement or any of the other Loan Documents unless it shall be requested in writing to do so by the Required Term Loan A Lenders or Required Lenders, as the context so requires (and the Agent shall not be obligated to take any such requested action which violates applicable law or any terms of this Agreement or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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~~Document).

Appears in 1 contract

Sources: Loan and Facilities Agreement (Bh Re LLC)

The Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the Agent and the Co-Collateral Agent (each, an “Appointed Agent”) as its agent and authorizes ~~the~~ each Appointed Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to ~~the~~ each Appointed Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In Without limiting the ~~event~~ generality of the ~~institution~~ foregoing, the Agent shall have the sole and exclusive authority to (a) act as the disbursing and collecting agent for Lenders with respect to all payments and collections arising in connection with the Loan Documents; (b) execute and deliver as Agent each Loan Document, including any intercreditor or subordination agreement, and accept delivery of each Loan Document from any Loan Party or other Person; (c) act as collateral agent for Secured Parties for purposes of perfecting and administering Liens under the Loan Documents, and for all other purposes stated therein; (d) together with the Co-Collateral Agent, manage, supervise or otherwise deal with Collateral; and (e) take any enforcement action or otherwise exercise any rights or remedies with respect to any Collateral under the Loan Documents, applicable law or otherwise. The Appointed Agents alone shall be authorized to determine whether any Accounts or Inventory constitute Eligible Receivables or Eligible Inventory, or whether to impose or release any reserve, which determinations and judgments, if exercised in good faith, shall exonerate each Appointed Agent from liability to any Lender or other Person for any error in judgment. Any bank serving as ~~the~~ an Appointed Agent hereunder ~~shall also be a Lender, it~~ 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~~ an Appointed Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the ~~Borrower~~ Loan Parties or any ~~Subsidiary~~ subsidiary of a Loan Party or other Affiliate thereof as if it were not the Agent hereunder. ~~The~~ No Appointed Agent shall ~~not~~ have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) ~~the~~ no Appointed Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the~~ no Appointed 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~~ such Appointed 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, ~~the~~ no Appointed Agent shall ~~not~~ have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇, the Borrower~~ any Loan Party or any of ~~the Subsidiaries of Level 3~~ its subsidiaries that is communicated to or obtained by the ~~institution~~ bank serving as an Appointed Agent or any of its Affiliates in any capacity. ~~The~~ No Appointed 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 of, or for any losses not directly and solely caused by, its own gross negligence or willful misconduct. ~~The~~ No Appointed Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to ~~the~~ such Appointed Agent by ~~▇▇▇▇▇ ▇,~~ the Borrower Agent or a Lender, and ~~the~~ no Appointed 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 ~~thereunder~~ hereunder or in connection ~~therewith~~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 (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. ~~As to~~ If any ~~matters not expressly provided for by this Agreement~~ Lender acquires knowledge of a Default or Event of Default, it shall promptly notify the Agent and the other Lenders thereof in writing. Each Lender agrees that, except as otherwise provided in any Loan Documents ~~(including enforcement~~ or ~~collection),~~ with the ~~Administrative~~ written consent of the Agent and the ~~Collateral Agent shall~~ Required Lenders, it will not ~~be required to~~ take any enforcement action, accelerate the Obligations under any Loan Documents, or exercise any ~~discretion~~ right that it might otherwise have under Applicable Law to credit bid at foreclosure sales, UCC sales or ~~take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon~~ other similar dispositions of Collateral. Notwithstanding the ~~instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided~~foregoing, however, a Lender may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the ~~Administrative Agent and~~ Obligations held by such Lender, including the ~~Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent~~ filing of proofs of claim in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable lawa Bankruptcy Proceeding. ~~The~~ Each Appointed Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. ~~The~~ Each Appointed Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. ~~The~~ Each Appointed Agent may consult with legal counsel (who may be counsel for ~~Level 3 or the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The~~ Each Appointed Agent may perform any and all its duties and exercise its rights and powers by or through any one or more agents, co-agents or sub-agents appointed by ~~the~~ such Appointed Agent. ~~The~~ Each Appointed Agent and any such agents, co-agents or sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The Lenders shall execute and deliver such documents as any Appointed Agent deems appropriate to vest any rights or remedies in such agents, co-agents or sub-agent. The exculpatory provisions of the preceding paragraphs shall apply to any such agents, co-agents or sub-agent and to the Related Parties of ~~each~~ any Appointed Agent and any agents, co-agents or 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 such Appointed Agent. Subject to the appointment and acceptance of a successor to any Appointed Agent as provided in this paragraph, ~~the~~ any Appointed Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Issuing Banks and ~~Level 3~~the Borrower Agent. Upon any such resignation, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing,~~ with the consent ~~of Level 3~~ (~~which consent shall~~ not to be unreasonably withheld or delayed) of the Company, to appoint a successor; provided that, during the existence and continuation of an Event of Default, no consent of the Company shall be required. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Appointed Agent gives notice of its resignation, then the retiring Appointed Agent may, on behalf of the ~~Lenders~~Lenders and the Issuing Banks, appoint a successor Agent which shall be a ~~Lender or a~~ commercial bank ~~with an office in New York, New York,~~ or an Affiliate of ~~such Lender or~~ any such ~~bank~~commercial bank reasonably acceptable to the Company. Upon the acceptance of its appointment as an Appointed Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Appointed Agent, and the retiring Appointed Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the ~~Borrower~~ Company to a successor Appointed Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Company and such successor. After the Appointed Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Appointed 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 Appointed Agent. Any successor to Bank of America, N.A. by merger or acquisition of stock or this loan shall continue to be the Agent hereunder without further act on the part of the parties hereto, unless such successor resigns as provided above. Each Lender acknowledges that it has, independently and without reliance upon ~~the~~ any Appointed Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon ~~the~~ any Appointed 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 any Appointed Agent; (b) no Appointed Agent (i) makes 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 or (ii) shall 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 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 each Appointed 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 attorneys’ fees) incurred by any Appointed 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 and any action such Lender may take as a result of or any conclusion it may draw from any such Report. The co-arrangers, joint bookrunners and syndication agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.

Appears in 1 contract

Sources: Credit Agreement (American Tire Distributors Holdings, Inc.)

The Agent. ~~Each~~ (a) The Agent will hold in accordance with the --------- terms and provisions of the ~~Lenders hereby irrevocably appoints~~ Appointment Agreement and this Agreement all Subject Collateral at any time received by it under this Agreement. It is expressly understood and agreed that the obligations of the Agent as ~~its agent~~ holder of the Subject Collateral and ~~authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated~~ with respect to the ~~Agent by the terms of the Loan Documents, together with such actions and powers as~~ disposition thereof are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except only those expressly set forth in this Agreement and in the ~~Loan Documents. Without limiting~~ Appointment Agreement, and no implied covenants or obligations shall be read into this Agreement against the ~~generality~~ Agent. (b) In case of any litigation under this Agreement, or in case of any enforcement of remedies or exercise of rights upon the occurrence of an Event of Default, or in case the Agent deems that, by reason of any present or future law of any jurisdiction, it may not or may not effectively exercise any of the ~~foregoing~~powers, ~~(a)~~ rights or remedies herein granted to it or hold title to the properties as herein granted, or take any other action which may be desirable or necessary in connection therewith, the Agent shall ~~not~~ be ~~subject~~ entitled to appoint, to the extent consistent with any ~~fiduciary~~ applicable law, one or ~~other implied duties~~more separate or additional co-agents. In the event that the Agent appoints an individual or institution as a separate or additional co-agent (i) any appointment of any such co-agent by the Agent shall be made only with the prior written consent of the Assignor and the Required Holder(s) (except that, ~~regardless~~ if the Agent shall have received written notice from any Holder of ~~whether~~ Secured Obligations that a Default or an Event of Default has occurred and is continuing, ~~(b)~~ such consent shall be required only of the ~~Agent~~ Required Holder(s)), which consent shall not ~~have any duty to take any discretionary action~~ be unreasonably withheld or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, delayed and (cii) ~~except as expressly set forth in the Loan Documents~~each and every remedy, power, right, title, interest, duty and obligation expressed or intended by this Agreement to be exercised by or vested in, conveyed to or imposed upon, the Agent with respect thereto shall ~~not~~ be exercisable by and vest in such separate or additional co-agent but only to the extent necessary, appropriate or desirable to enable such separate or additional co-agent to exercise or have ~~any duty to disclose~~vested in it such powers, rights, trusts, titles, interests, duties and obligations and remedies, and every covenant and obligation necessary, appropriate or desirable to the exercise thereof by such separate or additional co-agent shall ~~not~~ run to and be ~~liable for the failure to disclose, any information relating to ▇▇▇▇▇ ▇, the Borrower~~ enforceable by either or any of ~~the Subsidiaries of Level 3 that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity~~them. The Agent shall ~~not be liable for~~ have the right to terminate the appointment of any ~~action taken or not taken by it~~ such co-agent hereunder with the prior written consent of the Assignor and the Required Holder(s) (except that, if the Agent shall have received written notice from any Holder that a Default or ~~at the request~~ an Event of Default has occurred and is continuing, such consent shall be required only of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ▇▇▇▇▇ ▇, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collectionHolder(s)), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for Level 3 or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor as provided in this paragraph, the Agent may resign at any time by notifying the Lenders and Level 3. Upon any such resignation, the Required Lenders shall have the right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed~~) to appoint a successor~~. ~~If no successor shall have been~~ Should any instrument in writing from the Assignor be required by the separate or additional co-agent so appointed by the ~~Required Lenders~~ Agent to more fully and ~~shall have accepted~~ certainly vest in and confirm to it such ~~appointment within 30 days after the retiring Agent gives notice of its resignation~~remedies, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a Lender or a bank with an office in New York, New York, or an Affiliate of such Lender or any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, ~~privileges~~ titles, interest, duties and ~~duties~~ obligations, any and all such instruments in writing shall, on request, be executed, acknowledged and delivered by the Assignor. In case any separate or additional co-agent, or a successor to either, shall become incapable of acting, resign or be removed all the ~~retiring Agent~~remedies, ~~and the retiring Agent shall be discharged from its~~ rights, powers, titles, interests, trusts, duties and obligations hereunder. The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such ~~retiring Agent~~separate or additional coagent, ~~its sub-agents~~ so far as permitted by law, shall vest in and ~~their respective Related Parties in respect of any actions taken or omitted to~~ be ~~taken~~ exercised by ~~any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon~~ the Agent until the appointment of a new agent or ~~any other Lender and based on~~ successor to such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agent separate 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 thereunderadditional co-agent.

Appears in 1 contract

Sources: Pledge Agreement (Maginet Corp)

The Agent. In order to expedite the transactions contemplated by this Agreement, JPMorgan Chase Bank is hereby appointed to act as Agent on behalf of the Banks. Each of the ~~Lenders~~ Banks, and each transferee of any Bank, hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such actions on ~~its~~ behalf of such Bank or transferee and to exercise such powers as are specifically delegated to the Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent ~~shall not have~~ is hereby expressly authorized by the Banks, without hereby limiting any ~~duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing~~implied authority, (a) to receive on behalf of the ~~Agent shall not be subject~~ Banks all payments of principal of and interest on the Loans and all other amounts due to ~~any fiduciary or other implied duties~~the Banks hereunder, ~~regardless~~ and promptly to distribute to each Bank its proper share of ~~whether a Default has occurred and is continuing,~~ each payment so received; (b) to give notice on behalf of each of the Banks to the Borrower of any Event of Default specified in this Agreement of which the 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 Agent is required to exercise has actual knowledge acquired in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, connection with its agency hereunder; and (c) ~~except~~ to distribute to each Bank copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as ~~expressly set forth in~~ received by the ~~Loan Documents,~~ Agent. Neither the Agent nor any of its directors, officers, employees or agents shall ~~not have any duty to disclose, and shall not~~ be liable as such for any action taken or omitted by any of them except for its or his own gross negligence or wilful misconduct, or be responsible for any statement, warranty or representation herein or the ~~failure~~ contents of any document delivered in connection herewith, or be required to ~~disclose,~~ ascertain or to make any ~~information relating to ▇▇▇▇▇ ▇,~~ inquiry concerning the performance or observance by the Borrower or of any of the ~~Subsidiaries of Level 3 that is communicated to~~ terms, conditions, covenants or ~~obtained by the institution serving as Agent or any of its Affiliates~~ agreements contained in any ~~capacity~~Loan Document. The Agent shall not be ~~liable~~ responsible to the Banks for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Banks and, except as otherwise specifically provided herein, such instructions and 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~~ inaction pursuant thereto shall be ~~necessary under~~ binding on all the ~~circumstances as provided in Section 9.02) or~~ Banks. The Agent shall, in the absence of ~~its own gross negligence or willful misconduct. The Agent shall be deemed not to have~~ knowledge ~~of any Default unless and until written notice thereof is given~~ to the ~~Agent by ▇▇▇▇▇ ▇~~contrary, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall 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. ~~The~~ Neither the Agent ~~also may rely upon~~ nor any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ the Borrower on account of the failure of or delay in performance or breach by ~~telephone and believed~~ any Bank of any of its obligations hereunder or to any Bank on account of the failure of or delay in performance or breach by ~~it to be made by~~ any other Bank or the ~~proper Person, and shall not incur~~ Borrower of any ~~liability for relying thereon~~of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. The Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for Level 3 or the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it 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 in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. The Banks hereby acknowledge that the Agent ~~may perform~~ shall be under no duty to take any ~~and all its duties and exercise its rights and powers~~ discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as AgentRequired Banks. Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the ~~Lenders~~ Banks and ~~Level 3~~the Borrower. Upon any such resignation, the Required ~~Lenders~~ Banks shall have the ~~right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ right to appoint a successor. If no successor shall have been so appointed by the Required ~~Lenders~~ Banks 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~~Banks, appoint a successor Agent ~~which shall be~~ having a ~~Lender or a bank with an office in New York, New York,~~ combined capital and surplus of at least $500,000,000 or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of ~~its~~ any appointment as Agent 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 ~~Agent,~~ Agent and the retiring Agent shall be discharged from its duties and obligations hereunder~~. The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor~~. After the Agent’s resignation hereunder, the provisions of this Article and Section ~~9.03~~ 10.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Agent. With respect to the Loans made by it hereunder, the Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Bank and may exercise the same as though it were not the Agent, and the Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Agent. Each ~~Lender~~ Bank agrees (i) to reimburse the Agent, on demand, (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), in the amount of its pro rata share (based on its Commitment hereunder) of any expenses incurred for the benefit of the Banks by the Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Banks, which shall not have been reimbursed by the Borrower and (ii) to indemnify and hold harmless the Agent and any of its 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 it in its capacity as the Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or any action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Borrower; provided that no Bank shall be liable to the 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 the Agent or any of its directors, officers, employees or agents. Each Bank acknowledges that it has, independently and without reliance upon the Agent or any other ~~Lender~~ Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each ~~Lender~~ Bank also acknowledges that it will, independently and without reliance upon the Agent or any other ~~Lender~~ Bank and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any other Loan ~~Document or~~ Document, any related agreement or any document furnished hereunder or thereunder. Anything herein to the contrary notwithstanding, none of the Sole Bookrunner, Sole Lead Arranger, Syndication Agents or Co-Syndication Agents listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Agent or a Bank hereunder.

Appears in 1 contract

Sources: 5 Year Competitive Advance and Revolving Credit Facility Agreement (Scripps E W Co /De)

The Agent. Each of the Lenders hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ▇▇▇▇▇ ▇, the Borrower or any of the Subsidiaries of Level 3 that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ▇▇▇▇▇ ▇, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, 141 or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for Level 3 or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. ~~Subject to the appointment and acceptance of a successor as provided in this paragraph, the~~ The Agent may ~~resign~~ at any time give notice of its resignation by notifying the Lenders and Level 3. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its ~~resignation~~resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a Lender or a bank with an office in New York, New York, or an Affiliate of such Lender or any such bank. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date. With effect from the Resignation Effective Date, (a) the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any Collateral held by the Agent on behalf of the Lenders under any of the Loan Documents, the retiring Agent shall continue to hold such Collateral until such time as a successor Agent is appointed) and (b) except for any indemnity payments or other amounts then owed to the retiring Agent, all payments, communications and determinations provided to be made by, to or through the Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Agent as provided above. Upon the acceptance of ~~its~~ a successor’s appointment as Agent ~~hereunder by a successor~~hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring ~~Agent~~Agent (other than any rights to indemnity payments or other amounts owed to the retiring Agent as of the Resignation Effective Date), and the retiring Agent shall be discharged from all of its duties and obligations ~~hereunder~~hereunder or under the other Loan Documents. The fees payable by Level 3 ~~and the Borrower~~ to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Level 3 and such successor. After the retiring Agent’s resignation ~~hereunder~~hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them (i) while it the retiring Agent was acting as Agent and (ii) after such resignation or removal for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including (a) holding any Collateral on behalf of any of the Lenders and (b) in respect of any actions taken in connection with transferring the agency to any successor Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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.

Appears in 1 contract

Sources: Credit Agreement

Appears in 1 contract

Sources: Credit Agreement (TransDigm Group INC)

The Agent. Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. In The provisions of this Article (except the ~~event~~ consultation rights of the ~~institution~~ Borrower provided for in the sixth paragraph of this Article VIII) are solely for the benefit of the Administrative Agent and the Lenders, and the Borrower shall not have rights as a third-party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as the Administrative Agent hereunder ~~shall also be a Lender, it~~ 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 Agent~~serving in such agency capacity, and such ~~institution~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3~~the Borrower, ~~the Borrower or~~ any Subsidiary or PAA or other Affiliate thereof as if it were not ~~the Agent~~ an agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that the Administrative Agent is required to exercise in writing 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 shall~~ ; provided that the Administrative Agent will not ~~have any duty~~ be required to take any action that, in its opinion or ~~exercise~~ the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any ~~powers~~ Loan Document or applicable law, including for the avoidance of doubt, any action that ~~would result~~ may be in violation of the ~~incurrence by it~~ automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of ~~costs or expenses unless arrangements satisfactory to it to ensure the prompt payment~~ property of ~~all such costs or expenses shall have been made by the Lenders~~a Defaulting Lender in violation of any Debtor Relief Law, and (c) except as expressly set forth ~~in the Loan Documents~~herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇~~the Borrower, ~~the Borrower or~~ any of ~~the~~ its Subsidiaries ~~of Level 3~~ or PAA that is communicated to or obtained by ~~the institution~~ any of them while serving as ~~Agent~~ Administrative Agent, as applicable, or by any of ~~its~~ their respective Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section ~~9.02~~9.02 and ARTICLE VII) or in the absence of its own gross negligence or willful ~~misconduct~~misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~▇▇▇▇▇ ▇,~~ the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in ~~Article~~ ARTICLE IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable lawthem. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. The Administrative Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more ~~sub-~~sub- agents appointed by ~~the Agent~~such Person. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~each~~ the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. ~~Subject~~ The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the ~~appointment~~ extent that a court of competent jurisdiction determines in a final and ~~acceptance~~ non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of ~~a successor as provided in this paragraph, the~~ such sub agents. The Administrative Agent may ~~resign~~ at any time ~~by notifying~~ give notice of its resignation to the Lenders and ~~Level 3~~the Borrower. In addition, at any time the Person serving as the Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, in consultation with the Borrower, to the extent not prohibited by applicable law, by notice in writing to the Borrower and such Person, remove such Person as the Administrative Agent. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, ~~with~~in consultation with the Borrower, ~~so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ to appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its ~~resignation~~resignation (such 30-day period, the “Lender Party Appointment Period”), then the retiring Administrative Agent ~~may,~~ may on behalf of the Lenders, appoint a successor Administrative Agent meeting the qualifications set forth above. In addition and without any obligation on the part of the retiring Administrative Agent to appoint, on behalf of the Lenders, a successor Administrative Agent, the retiring Administrative Agent may at any time upon or after the end of the Lender Party Appointment Period notify the Borrower and the Lenders that no qualifying Person has accepted appointment as successor Administrative Agent and the effective date of such retiring Administrative Agent’s resignation which effective date shall be ~~a Lender or a bank with an office in New York, New York, or an Affiliate~~ no earlier than three Business Days after the date of such notice. Upon the resignation effective date established in such notice and regardless of whether a successor Administrative Agent has been appointed and accepted such appointment, the retiring Administrative Agent’s resignation shall nonetheless become effective and (i) the retiring Administrative Agent shall be discharged from its duties and obligations as Administrative Agent hereunder and under the other Loan Documents and (ii) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender ~~or any~~ directly, until such ~~bank~~time as the Required Lenders appoint a successor Administrative Agent as provided for above in this paragraph and all Security Instruments shall be amended to provide that the Lenders are the secured party and beneficiaries thereunder, as applicable. Upon the acceptance of ~~its~~ a successor’s appointment as Administrative Agent ~~hereunder by a successor~~hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties as Administrative Agent of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations ~~hereunder~~as Administrative Agent hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this paragraph). The fees payable by ~~Level 3 and~~ the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrower and such successor. After the retiring Administrative Agent’s resignation ~~hereunder~~hereunder and under the other Loan Documents, the provisions of this Article ~~and Section 9.03~~ shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it the retiring Administrative Agent was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan ~~Document or~~ Document, any related agreement or any document furnished hereunder or thereunder. Neither any Joint Arranger and Joint Bookrunner nor any Co-Syndication Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, neither any Joint Arranger and Joint Bookrunner nor any Co-Syndication Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgements with respect to each Joint Arranger and Joint Bookrunner and each Co-Syndication Agent as it makes with respect to the Administrative Agent in the immediately preceding paragraph of this ARTICLE VIII. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to Borrower, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under this Agreement) allowed in such judicial proceeding; and (b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under this Agreement.

Appears in 1 contract

Sources: Credit Agreement

The Agent. In order to expedite the transactions contemplated by this Agreement, Credit Lyonnais is hereby appointed to act as Agent on behalf of the Lenders. Each of the Lenders hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such actions on ~~its~~ behalf of such Lender and to exercise such powers as are specifically delegated to the Agent by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent ~~shall not have any duties or obligations except those~~ is hereby expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made authorized by the Lenders, without hereby limiting any implied authority, (i) 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; (ii) to give notice on behalf of each of the Lenders to the Borrower of any Event of Default of which the Agent has actual knowledge acquired in connection with its agency hereunder; and (ciii) ~~except as expressly set forth in the Loan Documents~~to distribute to each Lender copies of all notices, ~~the Agent shall not have any duty to disclose,~~ financial statements and ~~shall not be liable for the failure to disclose, any information relating to ▇▇▇▇▇ ▇,~~ other materials delivered by the Borrower ~~or any~~ pursuant to this Agreement as received by the Agent. None of the ~~Subsidiaries of Level 3 that is communicated to or obtained by the institution serving as~~ Agent or any of its ~~Affiliates~~ directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any ~~capacity~~inquiry concerning the performance or observance by the Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agent shall not be ~~liable~~ responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agent may deem and treat the Lender that makes any ~~action taken~~ 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 Agent shall in all cases be fully protected in acting, or ~~not taken~~ refraining from acting, in accordance with written instructions signed by ~~it with the consent or at the request of~~ the Required Lenders (and, except as otherwise specifically provided herein, such instructions and any action or ~~such other number or percentage of the Lenders as~~ inaction pursuant thereto shall be ~~necessary under~~ binding on all the ~~circumstances as provided in Section 9.02) or~~ Lenders. The Agent shall, in the absence of ~~its own gross negligence or willful misconduct. The Agent shall be deemed not to have~~ knowledge ~~of any Default unless and until written notice thereof is given~~ to the ~~Agent by ▇▇▇▇▇ ▇~~contrary, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall 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. ~~The~~ None of the Agent ~~also may rely upon~~ or any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ the Borrower on account of the failure of or delay in performance or breach by ~~telephone and believed~~ 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 ~~it to be made by~~ any other Lender or the ~~proper Person, and shall not incur~~ Borrower of any ~~liability for relying thereon~~of their respective obligations hereunder or in connection herewith. The Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for Level 3 or the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it 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 in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. The Lenders hereby acknowledge that the Agent ~~may perform~~ shall not be under any ~~and all its duties and exercise its rights and powers~~ duty to take any discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the ~~right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ right to appoint a ~~successor~~successor Agent acceptable to the Borrower. If no successor shall have been so appointed by the Required Lenders 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, appoint a successor ~~Agent which shall be~~ Agent, having a ~~Lender or a bank with an office in New York, New York,~~ combined capital and surplus of at least $500,000,000 or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of ~~its~~ any appointment as Agent 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 ~~Agent,~~ Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor.~~ After the Agent’s 's resignation hereunder, the provisions of this Article and Section ~~9.03~~ 8.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Agent. With respect to the Loans made by it hereunder, Credit Lyonnais, in its individual capacity and not as the Agent, shall have the same rights and powers as any other Lender and may exercise the same as though it were not the Agent, and the Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, 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 Borrower and (ii) to indemnify and hold harmless the Agent and any of its 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 that may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrower; provided that no Lender shall be liable to the 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 the Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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.

Appears in 1 contract

Sources: Revolving Credit Agreement (Txu Corp /Tx/)

The Agent. In order to expedite the transactions contemplated by this Agreement, Citibank is hereby appointed to act as Agent on behalf of the Lenders. Each of the Lenders hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such actions on ~~its~~ behalf of such Lender and to exercise such powers as are specifically delegated to the Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent ~~shall not have any duties or obligations except those~~ is hereby expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made 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 Borrower of any Event of Default of which the Agent has actual knowledge acquired in connection with its agency hereunder; and (c) ~~except~~ to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as ~~expressly set forth in~~ received by the ~~Loan Documents,~~ Agent. Neither the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ▇▇▇▇▇ ▇, the Borrower or any of the Subsidiaries of Level 3 that is communicated to or obtained by the institution serving as Agent or nor any of its ~~Affiliates in any capacity. The Agent~~ directors, officers, employees or agents shall ~~not~~ be liable 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 (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~~ his own gross negligence or ~~willful~~ wilful misconduct~~. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ▇▇▇▇▇ ▇~~, ~~the Borrower~~ or ~~a Lender, and the Agent shall not~~ be responsible for ~~or have any duty to ascertain or inquire into (i)~~ any statement, warranty or representation ~~made in~~ herein or ~~in connection with any Loan Document, (ii)~~ the contents of any ~~certificate, report or other~~ document delivered ~~thereunder or~~ in connection ~~therewith~~herewith, ~~(iii)~~ or be required to ascertain or to make any inquiry concerning the performance or observance by the 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, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. ~~As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral~~ The Agent shall not be ~~required~~ responsible to ~~exercise~~ the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any ~~discretion~~ other Loan Document, instrument or ~~take any action, but~~ agreement. The Agent shall ~~be required to act or to refrain from acting (and shall~~ in all cases be fully protected in ~~so acting~~ acting, or refraining from acting~~) upon~~ , in accordance with written instructions signed by the ~~instructions of the Requisite Lenders~~Required Lenders and, ~~and~~ except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding ~~upon~~ on all the Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent ~~shall~~ 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. ~~The~~ Neither the Agent ~~also may rely upon~~ nor any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ the Borrower on account of the failure of or delay in performance or breach by ~~telephone and believed~~ 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 ~~it to be made by~~ any other Lender or the ~~proper Person, and shall not incur~~ Borrower of any ~~liability for relying thereon~~of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. The Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for Level 3 or the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it 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 in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. The Lenders hereby acknowledge that the Agent ~~may perform~~ shall be under no duty to take any ~~and all its duties and exercise its rights and powers~~ discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with~~after consultation with the Borrower, ~~so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a ~~Lender or a~~ 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 ~~such Lender or~~ any such bank. Upon the acceptance of ~~its~~ any appointment as Agent 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 ~~Agent,~~ Agent and the retiring Agent shall be discharged from its duties and obligations hereunder~~. The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor~~. After the Agent’s resignation hereunder, the provisions of this Article and Section ~~9.03~~ 9.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Agent. With respect to the Loans made by it hereunder, the Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not the Agent, and the Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Agent. Each Lender agrees (i) to reimburse the Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Total Commitment shall be terminated, the percentage it holds of the aggregate outstanding principal amount of the Loans and participations in Swingline Loans) of any expenses incurred for the benefit of the Lenders by the Agent, 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 Borrower and (ii) to indemnify and hold harmless the Agent and any of its directors, officers, employees, agents or advisors, 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 it in its capacity as the Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or any action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Borrower; provided that no Lender shall be liable to the 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 the Agent or any of its directors, officers, employees, agents or advisors. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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~~ the other Loan ~~Document or~~ Documents, any related agreement or any document furnished hereunder or thereunder. Each Lender hereby acknowledges that the Syndication Agent has no duties or responsibilities hereunder other than in its capacity as a Lender.

Appears in 1 contract

Sources: Credit Facility Agreement (Janus Capital Group Inc)

The Agent. ~~Each~~ (a) In order to expedite the transactions contemplated by this Agreement, JPMorgan Chase is hereby appointed to act as Agent on behalf of the Lenders and the Fronting Banks. Each Lender and each Fronting Bank hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such actions on ~~its~~ behalf of such Lender and such Fronting Bank and to exercise such powers as are specifically delegated to the Agent by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. In The Agent is hereby expressly authorized by the ~~event~~ Lenders and the ~~institution serving as~~ Fronting Banks, without hereby limiting any implied authority, (i) to receive on behalf of the Lenders and the Fronting Banks all payments of principal of and interest on the Outstanding Credits and all other amounts due to the Lenders and the Fronting Banks hereunder, and promptly to distribute to each Lender and each Fronting Bank, its proper share of each payment so received; (ii) to give notice on behalf of each Lender and each Fronting Bank to the Borrowers of any Event of Default of which the Agent ~~hereunder shall also be a Lender, it shall have the same rights~~ has actual knowledge acquired in connection with its agency hereunder; and ~~powers in its capacity as a Lender as any other~~ (iii) to distribute to each Lender and ~~may exercise~~ each Fronting Bank copies of all notices, financial statements and other materials delivered by the ~~same~~ Borrowers pursuant to this Agreement as ~~though it were not~~ received by the Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, . (b) Neither the Agent nor any of its directors, officers, employees or agents shall ~~not have~~ be liable as such for any ~~duty~~ action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ~~take~~ ascertain or to make any ~~discretionary action~~ inquiry concerning the performance or ~~exercise any discretionary powers, except discretionary rights and powers expressly contemplated~~ observance by the ~~Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage~~ Borrowers of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ▇▇▇▇▇ ▇, the Borrower or any of the ~~Subsidiaries of Level 3 that is communicated to~~ terms, conditions, covenants or ~~obtained by the institution serving as Agent or any of its Affiliates~~ agreements contained in ~~any capacity~~this Agreement. The Agent shall not be ~~liable~~ responsible to the Lenders or the Fronting Banks for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agent may deem and treat the Lender or the Fronting Bank that makes any ~~action taken~~ Extension of Credit as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender or ~~not taken~~ such Fronting Bank, given as provided herein, of the transfer thereof. The Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by ~~it with the consent or at the request of~~ the Required Lenders (and, except as otherwise specifically provided herein, such instructions and any action or ~~such other number or percentage of~~ inaction pursuant thereto shall be binding on all the Lenders ~~as shall be necessary under~~ and the ~~circumstances as provided in Section 9.02) or~~ Fronting Banks. The Agent shall, in the absence of ~~its own gross negligence or willful misconduct. The Agent shall be deemed not to have~~ knowledge ~~of any Default unless and until written notice thereof is given~~ to the ~~Agent by ▇▇▇▇▇ ▇~~contrary, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall 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. ~~The~~ Neither the Agent ~~also may rely upon~~ nor any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ the Borrowers on account of the failure of or delay in performance or breach by ~~telephone and believed~~ any Lender or any Fronting Bank of any of its obligations hereunder or to any Lender or any Fronting Bank on account of the failure of or delay in performance or breach by ~~it to be made by the proper Person~~any other Lender, ~~and shall not incur~~ any ~~liability for relying thereon~~Fronting Bank or any Borrower of any of their respective obligations hereunder or in connection herewith. The Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for Level 3 or the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it 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 in accordance with the advice of ~~any~~ such counsel~~, accountants or experts.~~ . (c) The Lenders and the Fronting Banks hereby acknowledge that the Agent ~~may perform~~ shall not be under any ~~and all its duties and exercise its rights and powers~~ duty to take any discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Required Lenders. (d) Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Fronting Banks and ~~Level 3~~the Borrowers. Upon any such resignation, the Required Lenders shall have the ~~right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ right to appoint a ~~successor~~successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders 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~~Lenders and the Fronting Banks, appoint a successor ~~Agent which shall be~~ Agent, having a ~~Lender or a bank with an office in New York, New York,~~ combined capital and surplus of at least $500,000,000 or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of ~~its~~ any appointment as Agent 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 ~~Agent,~~ Agent and the ~~retiring~~ Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor.~~ After the Agent’s 's resignation hereunder, the provisions of this Article and Section ~~9.03~~ 8.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as the Agent. (e) With respect to the Extensions of Credit made by it hereunder, the Agent, in its individual capacity and not as Agent, shall have the same rights and powers as any other Lender and may exercise the same as though it were not the Agent, and the Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not Agent. (f) Each Lender agrees (i) to reimburse the Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its percentage of Outstanding Credits) of any expenses incurred for the benefit of the Lenders or the Fronting Banks, in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Fronting Banks, which shall not have been reimbursed by the Borrowers and (ii) to indemnify and hold harmless the Agent and any of its 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 it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that neither any Lender nor any Fronting Bank shall be liable to the 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 the Agent or any of its directors, officers, employees or agents. Each Lender and each Fronting Bank agrees that any allocation made in good faith by the Agent of expenses or other amounts referred to in this subsection (f) shall be conclusive and binding for all purposes. (g) Each Lender and each Fronting Bank acknowledges that it has, independently and without reliance upon the Agent or any other Lender or Fronting Bank, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Fronting Bank also acknowledges that it will, independently and without reliance upon the Agent or any other Lender or Fronting Bank, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. (h) Neither J.P. Morgan Securities, Inc. or Citigroup Global Markets Inc., by virt▇▇ ▇▇ ▇▇▇▇▇ designation as "Joint Lead Arrangers and Bookrunners" on the cover page of this Agreement, nor Citibank, N.A., by virtue of its designation as "Syndication Agent" on the cover page of this Agreement, shall have any duties, liabilities, obligations or responsibilities under this Agreement other than, if applicable, as a Lender or as a Fronting Bank hereunder.

Appears in 1 contract

Sources: Revolving Credit Agreement (Txu Corp /Tx/)

The Agent. Each of the Lenders hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the ~~Borrower~~ Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇, the Borrower~~ any Loan Party or any of ~~the~~ its Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for (i) its execution of the First Amendment at the direction of the Required Lenders or any other action taken or not taken by it in connection with a Permitted Voluntary Prepayment with the consent or at the request of the Required Lenders or (ii) 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 (iii) any action taken or not taken by it in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇,~~ the U.S. Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~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 (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the ~~Borrower~~Loan Parties), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all ~~its~~ of their duties and exercise ~~its~~ their 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~~ the 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 Agent. Each of the Lenders, the Issuers and the Loan Parties (and the U.K. Borrower) agree, that the Agent may, but shall not be obligated to, make the Approved Electronic Communications available to the Lenders, the Issuing Bank, the Senior Tranche Issuing Bank and the LC Facility Issuing Bank by posting such Approved Electronic Communications on IntraLinks™ or a substantially similar electronic platform chosen by the Agent to be its electronic transmission system (the “Approved Electronic Platform”). Although the Approved Electronic Platform and its primary web portal are secured with generally-applicable security procedures and policies implemented or modified by the Agent from time to time (including, as of the Closing Date, a dual firewall and a User ID/Password Authorization System) and the Approved Electronic Platform is secured through a single-user-per-deal authorization method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders, the Issuing Bank, the Senior Tranche Issuing Bank and the LC Facility Issuing Bank and the Loan Parties (and the U.K. Borrower) acknowledge and agree that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution. In consideration for the convenience and other benefits afforded by such distribution and for the other consideration provided hereunder, the receipt and sufficiency of which is hereby acknowledged, each of the Lenders, the Loan Parties (and the U.K. Borrower) and the Issuing Bank, the Senior Tranche Issuing Bank and the LC Facility Issuing Bank hereby approve distribution of the Approved Electronic Communications through the Approved Electronic Platform and understands and assumes the risks of such distribution. The Approved Electronic Communications and the Approved Electronic Platform are provided “as is” and “as available”. None of the Agent or any of its Affiliates or any of their respective officers, directors, employees, agents, advisors or representatives (the “Agent Affiliates”) warrant the accuracy, adequacy or completeness of the Approved Electronic Communications and the Approved Electronic Platform and each expressly disclaims liability for errors or omissions in the Approved Electronic Communications and the Approved Electronic Platform. No warranty of any kind, express, implied or statutory (including, without limitation, any warranty of merchantability, fitness for a particular purpose, noninfringement of third party rights or freedom from viruses or other code defects) is made by the Agent Affiliates in connection with the approved electronic communications or the approved electronic platform. Each of the Lenders, the Issuing Bank, the Senior Tranche Issuing Bank, the LC Facility Issuing Bank, and the Loan Parties (and the U.K. Borrower) agrees that the Agent may, but (except as may be required by applicable law) shall not be obligated to, store the Approved Electronic Communications on the Approved Electronic Platform in accordance with the Agent’s generally-applicable document retention procedures and policies. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, the Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Issuing Bank, the Senior Tranche Issuing Bank, the LC Facility Issuing Bank and ~~Level 3~~the U.S. Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing,~~ with the consent ~~of Level 3~~ (~~which consent shall~~ not to be unreasonably withheld or delayed) of the U.S. Borrower, to appoint a successor; provided that, during the existence and continuation of an Event of Default, no consent of the U.S. Borrower shall be required. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, the Issuing Bank, the Senior Tranche Issuing Bank and the LC Facility Issuing Bank appoint a successor Agent which shall be a ~~Lender or a~~ commercial bank ~~with an office in New York, New York,~~ or an Affiliate of ~~such Lender or~~ any such ~~bank~~commercial bank reasonably acceptable to the U.S. Borrower. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the ~~Borrower~~ Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrowers and such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 Agent. Any such resignation by the Agent hereunder shall, unless otherwise consented to by such Agent, also constitute the resignation of such Agent (and its Affiliates) as a Swingline Lender hereunder (in which case the U.S. Borrower may appoint a replacement Swingline Lender reasonably acceptable to the new Agent). Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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. The Joint Lead Arrangers, Joint Bookrunners, Syndication Agent and Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Each Lender authorizes and directs the Agent to, upon the request of the U.S. Borrower, enter into any Receivables Facility Intercreditor Agreement with any agent under any Receivables Facility of the U.S. Borrower or any of its Restricted Subsidiaries and each Lender agrees to be bound by the terms thereof that are applicable to it thereunder.

Appears in 1 contract

Sources: Forbearance Agreement and Third Amendment to Credit Agreement (Hawker Beechcraft Notes Co)

The Agent. Each of the Lenders hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, (a) the 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) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~8.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth ~~in the Loan Documents~~herein, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇,~~ the Borrower or any of ~~the~~ its Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it (i) with the consent of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.02); (ii) at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~8.02); or (iii) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. The Agent shall be deemed not to have knowledge of any Event of Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇,~~ the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document~~this Agreement, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein (except insofar as a determination by the Agent is required for such satisfaction), other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~each~~ the 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 Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, the Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Borrower in writing. Upon any such resignation, the Required Lenders shall have the right, ~~with~~in consultation with the Borrower, ~~so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a ~~Lender or a~~ bank with an office in New York, New York, or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the Borrower to a successor Agent shall replace and be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrower and such successor. After the Agent’s 's resignation hereunder, the provisions of this Article and Section ~~9.03~~ 8.03 shall continue in effect for the benefit of such retiring 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 Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agent or any other Lender and based on such documents and ~~information~~ informa tion as it shall 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 party to this Agreement acknowledges that neither the Syndication Agent nor any of the Co-Documentation Agents shall have any separate duties, responsibilities, obligations or authority under this Agreement in such capacity.

Appears in 1 contract

Sources: 364 Day Competitive Advance and Revolving Credit Facility Agreement (Lee Sara Corp)

The Agent. ~~Each~~ (a) In order to expedite the transactions contemplated by this Agreement, JPMorgan Chase is hereby appointed to act as Agent on behalf of the Lenders and the Fronting Banks. Each Lender and each Fronting Bank hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such actions on ~~its~~ behalf of such Lender and such Fronting Bank and to exercise such powers as are specifically delegated to the Agent by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. In The Agent is hereby expressly authorized by the ~~event~~ Lenders and the ~~institution serving as~~ Fronting Banks, without hereby limiting any implied authority, (i) to receive on behalf of the Lenders and the Fronting Banks all payments of principal of and interest on the Outstanding Credits and all other amounts due to the Lenders and the Fronting Banks hereunder, and promptly to distribute to each Lender and each Fronting Bank, its proper share of each payment so received; (ii) to give notice on behalf of each Lender and each Fronting Bank to the Borrower of any Event of Default of which the Agent ~~hereunder shall also be a Lender, it shall have the same rights~~ has actual knowledge acquired in connection with its agency hereunder; and ~~powers in its capacity as a Lender as any other~~ (iii) to distribute to each Lender and ~~may exercise~~ each Fronting Bank copies of all notices, financial statements and other materials delivered by the ~~same~~ Borrower pursuant to this Agreement as ~~though it were not~~ received by the Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, . (b) Neither the Agent nor any of its directors, officers, employees or agents shall ~~not have~~ be liable as such for any ~~duty~~ action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ~~take~~ ascertain or to make any ~~discretionary action~~ inquiry concerning the performance or ~~exercise any discretionary powers, except discretionary rights and powers expressly contemplated~~ observance by the ~~Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage~~ Borrower of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ▇▇▇▇▇ ▇, the Borrower or any of the ~~Subsidiaries of Level 3 that is communicated to~~ terms, conditions, covenants or ~~obtained by the institution serving as Agent or any of its Affiliates~~ agreements contained in ~~any capacity~~this Agreement. The Agent shall not be ~~liable~~ responsible to the Lenders or the Fronting Banks for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agent may deem and treat the Lender or the Fronting Bank that makes any ~~action taken~~ Extension of Credit as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender or ~~not taken~~ such Fronting Bank, given as provided herein, of the transfer thereof. The Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by ~~it with the consent or at the request of~~ the Required Lenders (and, except as otherwise specifically provided herein, such instructions and any action or ~~such other number or percentage of~~ inaction pursuant thereto shall be binding on all the Lenders ~~as shall be necessary under~~ and the ~~circumstances as provided in Section 9.02) or~~ Fronting Banks. The Agent shall, in the absence of ~~its own gross negligence or willful misconduct. The Agent shall be deemed not to have~~ knowledge ~~of any Default unless and until written notice thereof is given~~ to the ~~Agent by ▇▇▇▇▇ ▇~~contrary, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall 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. ~~The~~ Neither the Agent ~~also may rely upon~~ nor any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ the Borrower or any Subsidiary on account of the failure of or delay in performance or breach by ~~telephone and believed~~ any Lender or any Fronting Bank of any of its obligations hereunder or to any Lender or any Fronting Bank on account of the failure of or delay in performance or breach by ~~it to be made by~~ any other Lender, any Fronting Bank or the ~~proper Person, and shall not incur~~ Borrower or any ~~liability for relying thereon~~Subsidiary of any of their respective obligations hereunder or in connection herewith. The Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for Level 3 or the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it 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 in accordance with the advice of ~~any~~ such counsel~~, accountants or experts.~~ . (c) The Lenders and the Fronting Banks hereby acknowledge that the Agent ~~may perform~~ shall not be under any ~~and all its duties and exercise its rights and powers~~ duty to take any discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Required Lenders. (d) Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Fronting Banks and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the ~~right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ right to appoint a ~~successor~~successor Agent acceptable to the Borrower. If no successor shall have been so appointed by the Required Lenders 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~~Lenders and the Fronting Banks, appoint a successor ~~Agent which shall be~~ Agent, having a ~~Lender or a bank with an office in New York, New York,~~ combined capital and surplus of at least $500,000,000 or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of ~~its~~ any appointment as Agent 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 ~~Agent,~~ Agent and the ~~retiring~~ Agent shall be discharged from its duties and obligations hereunder~~. The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor~~. After the Agent’s resignation hereunder, the provisions of this Article and Section ~~9.03~~ 8.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as the Agent. (e) With respect to the Extensions of Credit made by it hereunder, JPMorgan Chase, in its individual capacity and not as Agent, shall have the same rights, obligations and powers as any other Lender and may exercise the same as though it were not the Agent, and the Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not Agent. (f) Each Lender agrees (i) to reimburse the Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if all of the Commitments shall have been terminated, the amount of its percentage of Outstanding Credits) of any expenses incurred for the benefit of the Lenders or the Fronting Banks, in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Fronting Banks, which shall not have been reimbursed by the Borrower (but without limiting the Borrower’s obligation to make such reimbursement) and (ii) to indemnify and hold harmless the Agent and any of its 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 it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrower; provided that neither any Lender nor any Fronting Bank shall be liable to the 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 the Agent or any of its directors, officers, employees or agents. Each Lender and each Fronting Bank agrees that any allocation made in good faith by the Agent of expenses or other amounts referred to in this subsection (f) shall be conclusive and binding for all purposes, absent manifest error. (g) Each Lender and each Fronting Bank acknowledges that it has, independently and without reliance upon the Agent or any other Lender or Fronting Bank or any Person designated as a “Joint Lead Arranger”, a “Syndication Agent” or a “Documentation Agent” on the cover page of this Agreement, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Fronting Bank also acknowledges that it will, independently and without reliance upon the Agent or any other Lender or Fronting Bank or any Person designated as a “Joint Lead Arranger”, a “Syndication Agent” or a “Documentation Agent” on the cover page of this Agreement, 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. (h) None of the Persons designated as a “Joint Lead Arranger”, a “Syndication Agent” or a “Documentation Agent” on the cover page of this Agreement shall have any duties, liabilities, obligations or responsibilities under this Agreement other than, if applicable, in such Person’s role as a Credit Party. (i) Each Secured Party party hereto hereby further authorizes the Collateral Agent on behalf of and for the benefit of such Secured Parties, to be the agent for and representative of such Secured Parties with respect to the Collateral and the Security Documents. Subject to Section 8.08, without further written consent or authorization from any such Secured Party, the Collateral Agent may execute any documents or instruments necessary to in connection with a sale or disposition of assets permitted by this Agreement, release any Lien encumbering any item of Collateral that is the subject of such sale or other disposition of assets, or with respect to which the Required Lenders (or such other Lenders as may be required to give such consent under Section 8.08) have otherwise consented (to the extent such consent is required). (j) Anything contained in any of the Credit Documents to the contrary notwithstanding, the Borrower, the Agents and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral, it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Agent, on behalf of the Lenders, in accordance with the terms hereof, and all powers, rights and remedies under the Security Documents may be exercised solely by the Collateral Agent, on behalf of the Secured Parties, in accordance with the terms of the Security Documents, and (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Collateral Agent or any Secured Party may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by the Collateral Agent at such sale or other disposition. (k) To the extent required by any applicable law, the Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax. If the Internal Revenue Service or any other authority of the United States or other jurisdiction asserts a claim that the Agent did not properly withhold tax from amounts paid to or for the account of any Lender for any reason (including, without limitation, because the appropriate form was not delivered or not property executed, or because such Lender failed to notify the Agent of a change in circumstance that rendered the exemption from, or reduction of withholding tax ineffective), such Lender shall indemnify and hold harmless the Agent (to the extent that the Agent has not already been reimbursed by the Borrower and without limiting the obligation of the Borrower to do so) for all amounts paid, directly or indirectly, by the Agent as tax or otherwise, including any interest, additions to tax or penalties thereto, together with all expenses incurred, including legal expenses and any other out-of-pocket expenses, whether or not such tax were correctly or legally imposed or asserted by the relevant Government Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Agent shall be conclusive absent manifest error.

Appears in 1 contract

Sources: Revolving Credit Agreement (Oncor Electric Delivery Co LLC)

The Agent. In order to expedite the various transactions contemplated by this Agreement, Toronto Dominion (Texas), Inc. is hereby appointed to act as Agent on behalf of the Banks. Each of the ~~Lenders~~ Banks hereby irrevocably ~~appoints the Agent as its agent~~ authorizes and ~~authorizes~~ directs the Agent to take such ~~actions~~ action on ~~its~~ behalf of such Bank under the terms and provisions of this Agreement, and to exercise such powers hereunder as are specifically delegated to or required of the Agent by the terms ~~of the Loan Documents~~and provisions hereof, together with such ~~actions and~~ powers as are reasonably incidental thereto. In The Agent is hereby expressly authorized on behalf of the ~~event~~ Banks, without hereby limiting any implied authority, (a) to receive on behalf of each of the ~~institution serving as~~ Banks any payment of principal of or interest on the ~~Agent~~ Loans outstanding hereunder ~~shall also be a Lender, it shall have the same rights~~ and ~~powers in its capacity as a Lender as any~~ all other ~~Lender and may exercise the same as though it were not~~ amounts accrued hereunder paid to the Agent, and to distribute to each Bank its proper share of all payments so received as soon as practicable; (b) to give notice promptly on behalf of each of the Banks to the Borrower of any event of default specified in this Agreement of which the Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute promptly to each Bank copies of all notices, agreements and other material as provided for in this Agreement as received by such ~~institution~~ Agent. Neither the Agent nor any of its directors, officers, employees or agents shall be liable to any Bank as such for any action taken or omitted by any of them hereunder except for its or his own gross negligence or wilful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrower of any of the terms, conditions, covenants or agreements of this Agreement. The Agent shall not be responsible to the Banks for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other instrument to which reference is made herein. The Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Banks, and, except as otherwise specifically provided herein, such instructions and any action taken or failure to act pursuant thereto shall be binding on all the Banks. The Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any paper or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. Neither the Agent nor any of its directors, officers, employees or agents shall have any responsibility to the Borrower on account of the failure or delay in performance or breach by any Bank of any of its obligations hereunder or to any Bank on account of the failure of or delay in performance or breach by any other Bank or the Borrower of any of their respective obligations hereunder or in connection herewith. The Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Agent and its ~~Affiliates~~ affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the Borrower or ~~any Subsidiary or Affiliate~~ other affiliate thereof as if it were not the Agent. Each Bank recognizes that applicable laws, rules, regulations or guidelines of governmental authorities may require the Agent ~~hereunder~~to determine whether the transactions contemplated hereby should be classified as "highly lever aged" or assigned any similar or successor classification, and that such determination may be binding upon the other Banks. ~~The~~ Each Bank understands that any such determination shall be made solely by the Agent ~~shall not have any duties or obligations except those expressly set forth in~~ based upon such factors (which may include, without limitation, the ~~Loan Documents. Without limiting the generality of the foregoing, (a~~Agent's internal policies and prevailing market practices) as the Agent shall ~~not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred~~ deem relevant and ~~is continuing, (b)~~ agrees that the Agent shall ~~not~~ have no liability for the consequences of any ~~duty~~ such determination. Each Bank agrees (i) to ~~take~~ reimburse the Agent in the amount of such Bank's pro rata share (based on its Commitment hereunder) of any ~~discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated~~ expenses incurred for the benefit of the Banks by the ~~Loan Documents that~~ Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Banks, not reimbursed by the Borrower and (ii) to indemnify and hold harmless the Agent ~~is required to exercise in writing by the Required Lenders (~~and any of its directors, officers, employees or ~~such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02)~~agents, ~~and shall not have any duty to take any action or exercise any powers that would result~~ on demand, in the ~~incurrence~~ amount of its pro rata share, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it ~~of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except~~ in its capacity as ~~expressly set forth in the Loan Documents,~~ the Agent ~~shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ▇▇▇▇▇ ▇, the Borrower~~ or any of ~~the Subsidiaries of Level 3 that is communicated~~ them in any way relating to or ~~obtained~~ arising out of this Agreement or any action 72 183 taken or omitted by it or any of them under this Agreement, to the extent not reimbursed by the ~~institution serving as~~ Borrower; provided, however, that no Bank shall be liable to the 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 the Agent or any of its ~~Affiliates in any capacity. The Agent shall not be liable for any action taken~~ directors, officers, employees or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ▇▇▇▇▇ ▇, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for Level 3 or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor as provided in this paragraph, the Agent may resign at any time by notifying the Lenders and Level 3. Upon any such resignation, the Required Lenders shall have the right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a Lender or a bank with an office in New York, New York, or an Affiliate of such Lender or any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 Agentagents. Each ~~Lender~~ Bank acknowledges that it has, independently and without reliance upon the Agent or any other ~~Lender~~ Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each ~~Lender~~ Bank also acknowledges that it will, independently and without reliance upon the Agent or any other ~~Lender and~~ Bank based on such documents and information as it shall ~~from time to time~~ deem ~~appropriate~~appropriate at the time, 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~~ hereunder. The Agent may execute any of its duties under this Agreement by or ~~thereunder~~through agents or attorneys selected by them using reasonable care and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Agent shall not be responsible for the negligence or misconduct of any agents or attorneys selected and authorized to act by it with reasonable care unless the damage complained of directly results from an act or failure to act on part of the Agent which constitutes gross negligence or wilful misconduct. Delegation to an attorney or agent shall not release the Agent from its obligation to perform or cause to be performed the delegated duty.

Appears in 1 contract

Sources: Revolving Credit Agreement (Avista Corp)

The Agent. In order to expedite the transactions contemplated by this Agreement, The Chase Manhattan Bank is hereby appointed to act as Agent on behalf of the Lenders and the Issuing Bank. Each of the Lenders hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such actions on ~~its~~ behalf of such Lender or Issuing Bank and to exercise such powers as are specifically delegated to the Agent by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent ~~shall not have~~ is hereby expressly authorized by the Lenders and the Issuing Bank, without hereby limiting any ~~duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing~~implied authority, (a) to receive on behalf of the ~~Agent shall not be subject~~ Lenders and the Issuing Bank all payments of principal of and interest on the Loans, all payments in respect of L/C Disbursements and all other amounts due to ~~any fiduciary~~ the Lenders hereunder, and promptly to distribute to each Lender or ~~other implied duties, regardless~~ Issuing Bank its proper share of ~~whether a Default has occurred and is continuing,~~ each payment so received; (b) ~~the Agent shall not have any duty~~ to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage give notice on behalf of each of the Lenders ~~as shall be necessary under~~ to the ~~circumstances as provided~~ Borrower of any Event of Default specified in ~~Section 9.02), and shall not have any duty to take any action or exercise any powers that would result~~ this Agreement of which the Agent has actual knowledge acquired in ~~the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders,~~ connection with its agency hereunder; and (c) ~~except~~ to distribute to each Lender copies of all notices, financial statements and other materials delivered pursuant to this Agreement as ~~expressly set forth in~~ received by the ~~Loan Documents,~~ Agent. Neither the Agent nor any of its directors, offi- cers, employees or agents shall ~~not have any duty to disclose, and shall not~~ be liable to the Lenders as such for any action taken or omitted by any of them except for its or his own gross negligence or wilful misconduct, or be responsible for any statement, warranty or representation herein or the ~~failure to disclose~~contents of any document delivered in connection herewith (other than any statement, ~~any information~~ representation or warranty relating to ~~▇▇▇▇▇ ▇~~the Agent or relating to the functions of the Agent hereunder), or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrower or of any of the ~~Subsidiaries of Level 3 that is communicated to~~ terms, conditions, covenants or ~~obtained by the institution serving as Agent or any of its Affiliates~~ agreements contained in any ~~capacity~~Loan Document. The Agent shall not be ~~liable~~ responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any ~~action taken~~ other Loan Documents or ~~not taken~~ other instruments or agreements. The Agent may deem and treat the 86 86 payee of any note referred to in Section 2.07 as the owner thereof for all purposes hereof until it shall have received from the payee of such note notice, given as provided herein, of the transfer thereof. The Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by ~~it with the consent or at the request of~~ the Required Lenders (and, except as otherwise specifically provided herein, such instructions and any action or ~~such other number or percentage of the Lenders as~~ inaction pursuant thereto shall be ~~necessary under~~ binding on all the ~~circumstances as provided in Section 9.02) or~~ Lenders. The Agent shall, in the absence of ~~its own gross negligence or willful misconduct. The Agent shall be deemed not to have~~ knowledge ~~of any Default unless and until written notice thereof is given~~ to the ~~Agent by ▇▇▇▇▇ ▇~~contrary, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall 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. ~~The~~ Neither the Agent ~~also may rely upon~~ nor any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ the Borrower on account of the failure of or delay in performance or breach by ~~telephone and believed~~ any Lender or Issuing Bank of any of its obligations hereunder or to any Lender or Issuing Bank on account of the failure of or delay in performance or breach by ~~it to be made by~~ any other Lender or Issuing Bank or the ~~proper Person, and shall not incur~~ Borrower of any ~~liability for relying thereon~~of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. The Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for Level 3 or the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it 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 in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. The Lenders hereby acknowledge that the Agent ~~may perform~~ shall be under no duty to take any ~~and all its duties and exercise its rights and powers~~ discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the ~~right, with, so long as no Default or Event of Default shall have occurred and be continuing,~~ right to appoint a successor subject to the written consent of ~~Level 3~~ the Borrower to such successor (which consent ~~shall~~ will not be unreasonably ~~withheld or delayed) to appoint a successor~~withheld). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a ~~Lender or a~~ bank with ~~an office~~ offices in New York, New ~~York~~York and London, England, having a combined capital and surplus of at 87 87 least $500,000,000 or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of ~~its~~ any appointment as Agent 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 ~~Agent,~~ Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor.~~ After the Agent’s 's resignation hereunder, the provisions of this Article and Section ~~9.03~~ 9.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Agent. With respect to the Loans made by it hereunder, the Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not the Agent, and the Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Agent. Each Lender agrees (i) to reimburse the Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, on its Commitment most recently in effect) of any expenses incurred for the benefit of the Lenders by the Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which the Borrower shall be obligated to reimburse under Section 9.05 but which shall not have been reimbursed by the Borrower and (ii) to indemnify and hold harmless the Agent and any of its 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 it in its capacity as the Agent or any of them in any way relating to or arising out of the Agent's role under this Agreement or any other Loan Document or any action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Borrower; provided, however, that no Lender shall be liable to the 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 the Agent or any of its directors, officers, employees or agents. 88 88 Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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~~ Document, any related agreement or any document furnished hereunder or thereunder. The Co-Agent shall not have any responsibilities or obligations as Co-Agent under any of the Loan Documents.

Appears in 1 contract

Sources: Revolving Credit Facility Agreement (Choice Hotels Holdings Inc)

The Agent. Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~10.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇,~~ the ~~Borrower~~ Company or any of ~~the~~ its Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~10.02) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. The Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇,~~ the ~~Borrower~~ Company or a ~~Lender~~Lender (or, in the case of the Collateral Agent, until receipt of advice from the Administrative Agent), and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV 4 or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or the Borrower~~any Loan Party), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~each~~ the 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 Agent. Subject to the appointment and acceptance of a successor the Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Issuing Bank and ~~Level 3~~the Company. Upon any such resignation, the Required Lenders shall have the right, ~~with~~in consultation with the Company, ~~so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders~~Lenders and the Issuing Bank, appoint a successor Administrative Agent which shall be ~~a Lender or~~ a bank with an office in New York, New York, or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the ~~Borrower~~ Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Company and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~9.03~~ 10.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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.

Appears in 1 contract

Sources: Credit Agreement (Georgia Gulf Corp /De/)

The Agent. In order to expedite the transactions contemplated by this Agreement, ▇▇▇▇▇▇▇ ▇▇▇▇▇ is hereby appointed to act as Agent on behalf of the Lenders. Each of the Lenders hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such actions on ~~its~~ behalf of such Lender and to exercise such powers as are specifically delegated to the Agent by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent ~~shall not have any duties or obligations except those~~ is hereby expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made authorized by the Lenders, without hereby limiting any implied authority, (i) 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; (ii) to give notice on behalf of each of the Lenders to the Borrower of any Event of Default of which the Agent has actual knowledge acquired in connection with its agency hereunder; and (ciii) ~~except as expressly set forth in the Loan Documents~~to distribute to each Lender copies of all notices, ~~the Agent shall not have any duty to disclose,~~ financial statements and ~~shall not be liable for the failure to disclose, any information relating to ▇▇▇▇▇ ▇,~~ other materials delivered by the Borrower ~~or any~~ pursuant to this Agreement as received by the Agent. None of the ~~Subsidiaries of Level 3 that is communicated to or obtained by the institution serving as~~ Agent or any of its ~~Affiliates~~ directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any ~~capacity~~inquiry concerning the performance or observance by the Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agent shall not be ~~liable~~ responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agent may deem and treat the Lender that makes any ~~action taken~~ 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 Agent shall in all cases be fully protected in acting, or ~~not taken~~ refraining from acting, in accordance with written instructions signed by ~~it with the consent or at the request of~~ the Required Lenders (and, except as otherwise specifically provided herein, such instructions and any action or ~~such other number or percentage of the Lenders as~~ inaction pursuant thereto shall be ~~necessary under~~ binding on all the ~~circumstances as provided in Section 9.02) or~~ Lenders. The Agent shall, in the absence of ~~its own gross negligence or willful misconduct. The Agent shall be deemed not to have~~ knowledge ~~of any Default unless and until written notice thereof is given~~ to the ~~Agent by ▇▇▇▇▇ ▇~~contrary, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall 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. ~~The~~ None of the Agent ~~also may rely upon~~ or any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ the Borrower on account of the failure of or delay in performance or breach by ~~telephone and believed~~ 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 ~~it to be made by~~ any other Lender or the ~~proper Person, and shall not incur~~ Borrower of any ~~liability for relying thereon~~of their respective obligations hereunder or in connection herewith. The Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for Level 3 or the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it 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 in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. The Lenders hereby acknowledge that the Agent ~~may perform~~ shall not be under any ~~and all its duties and exercise its rights and powers~~ duty to take any discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the ~~right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ right to appoint a ~~successor~~successor Agent acceptable to the Borrower. If no successor shall have been so appointed by the Required Lenders 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, appoint a successor ~~Agent which shall be~~ Agent, having a ~~Lender or a bank with an office in New York, New York,~~ combined capital and surplus of at least $500,000,000 or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of ~~its~~ any appointment as Agent 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 ~~Agent,~~ Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor.~~ After the Agent’s 's resignation hereunder, the provisions of this Article and Section ~~9.03~~ 8.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Agent. With respect to the Loans made by it hereunder, ▇▇▇▇▇▇▇ ▇▇▇▇▇, in its individual capacity and not as the Agent, shall have the same rights and powers as any other Lender and may exercise the same as though it were not the Agent, and the Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments 41 shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, 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 Borrower and (ii) to indemnify and hold harmless the Agent and any of its 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 that may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrower; provided that no Lender shall be liable to the 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 the Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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.

Appears in 1 contract

Sources: Revolving Credit Agreement (Txu Gas Co)

The Agent. ~~Each~~ The obligations of the ~~Lenders~~ Agent under this Agreement are subject to the following terms and conditions: (a) The Agent is not a party to, and is not bound by, any agreement other than as expressly set forth in this Cash Escrow Agreement or, to the extent incorporated herein, in the Agreement; (b) The Agent acts hereunder as a depository only and is not responsible for or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of any funds deposited with it. Global, Aris and XOXO agree to and hereby ~~irrevocably appoints~~ do waive any suit, claim, demand or cause of action of any kind which they may have or may assert against the Agent ~~as its agent and authorizes~~ arising out of, or relating to, the execution or performance by the Agent of this Cash Escrow Agreement, unless such suit, claim, demand or cause of action is based upon the willful misconduct or gross negligence of the Agent. To the extent that the Agent delivers any funds in accordance with the instructions described in this Cash Escrow Agreement, Global, Aris and XOXO further agree to ~~take such actions on~~ indemnify the Agent against and from any and all claims, demands, costs, liabilities and expenses, including counsel fees, which may be asserted against it or to which it may be exposed or which it may incur by reason of its ~~behalf and~~ execution or performance of this Cash Escrow Agreement unless arising from the Agent's willful misconduct or gross negligence. The Agent shall not be required to ~~exercise such powers as are delegated~~ defend any legal proceeding which may be instituted against it with respect to the ~~Agent~~ subject matter of this Cash Escrow Agreement unless it is requested to do so by ~~the terms~~ one of the ~~Loan Documents, together with~~ parties hereto and is indemnified by such actions and powers as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 requesting party to the Agent's satisfaction against the cost and expenses (including reasonable attorney's fees) of such defense, ~~and such institution and its Affiliates may accept deposits from, lend money~~ unless arising from the Agent's willful misconduct or gross negligence. The Agent shall not be required to ~~and generally engage in~~ institute legal proceedings of any ~~kind~~ kind. The Agent shall not be required to perform any acts which violate any law or applicable rules of ~~business with Level 3, the Borrower or~~ any ~~Subsidiary or Affiliate thereof as if it were not the Agent hereunder.~~ governmental agency; (c) The Agent shall not have any ~~duties~~ responsibility for the genuineness or ~~obligations except those expressly set forth in the Loan Documents. Without limiting the generality~~ validity of ~~the foregoing~~any notice, ~~(a)~~ evidence or other document or item delivered to it, and the Agent shall ~~not~~ be ~~subject~~ entitled to rely upon and shall be protected in acting upon any ~~fiduciary~~ written notice, waiver, consent, receipt or other ~~implied duties, regardless of whether a Default has occurred and is continuing, (b)~~ evidence or paper document which the Agent ~~shall not have any duty~~ reasonably believes to ~~take any discretionary action or exercise any discretionary powers, except discretionary rights~~ be genuine and ~~powers expressly contemplated~~ to be signed by the ~~Loan Documents that the Agent is required to exercise in writing by the Required Lenders~~ proper person; and (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (cd) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ▇▇▇▇▇ ▇, the Borrower or any of the Subsidiaries of Level 3 that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any ~~action~~ error of judgment or for any acts done or steps taken or ~~not taken~~ omitted or admitted by it ~~with the consent~~ or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ▇▇▇▇▇ ▇, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for Level 3 or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any ~~action taken~~ mistake of facts or ~~not taken by it in accordance with the advice of any such counsel, accountants~~ law or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for ~~herein as well as activities as Agent. Subject to the appointment and acceptance of a successor as provided in this paragraph,~~ anything which the Agent may ~~resign at any time by notifying the Lenders and Level 3. Upon any such resignation, the Required Lenders shall have the right, with, so long as no Default~~ do or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a Lender or a bank with an office refrain from doing in New York, New York, or an Affiliate of such Lender or any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor. After connection herewith except for the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken 's own willful misconduct or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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 thereundergross negligence.

Appears in 1 contract

Sources: Cash Escrow Agreement (Aris Industries Inc)

The Agent. ~~Each~~ (a) In order to expedite the transactions contemplated by this Agreement, ▇▇▇▇▇ Fargo is hereby appointed to act as Agent on behalf of the ~~Lenders~~ Lenders. Each Lender hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such actions on ~~its~~ behalf of such Lender and to exercise such powers as are specifically delegated to the Agent by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent ~~shall not have any duties or obligations except those~~ is hereby expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made authorized by the Lenders, without hereby limiting any implied authority, (i) 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; (ii) to give notice on behalf of each Lender to the Borrower of any Event of Default of which the Agent has actual knowledge acquired in connection with its agency hereunder; and (ciii) ~~except~~ to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as ~~expressly set forth in~~ received by the ~~Loan Documents,~~ Agent. (b) Neither the Agent nor any of its directors, officers, employees or agents shall ~~not have any duty to disclose, and shall not~~ be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the ~~failure~~ contents of any document delivered in connection herewith, or be required to ~~disclose,~~ ascertain or to make any ~~information relating to ▇▇▇▇▇ ▇,~~ inquiry concerning the performance or observance by the Borrower or of any of the ~~Subsidiaries of Level 3 that is communicated to~~ terms, conditions, covenants or ~~obtained by the institution serving as Agent or any of its Affiliates~~ agreements contained in ~~any capacity~~this Agreement. The Agent shall not be ~~liable~~ responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agent may deem and treat the Lender that makes any ~~action taken~~ Extension 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 Agent shall in all cases be fully protected in acting, or ~~not taken~~ refraining from acting, in accordance with written instructions signed by ~~it with the consent or at the request of~~ the Required Lenders (and, except as otherwise specifically provided herein, such instructions and any action or ~~such other number or percentage of the Lenders as~~ inaction pursuant thereto shall be ~~necessary under~~ binding on all the ~~circumstances as provided in Section 9.02) or~~ Lenders. The Agent shall, in the absence of ~~its own gross negligence or willful misconduct. The Agent shall be deemed not to have~~ knowledge ~~of any Default unless and until written notice thereof is given~~ to the ~~Agent by ▇▇▇▇▇ ▇~~contrary, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall 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. ~~The~~ Neither the Agent ~~also may rely upon~~ nor any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ the Borrower or any Subsidiary on account of the failure of or delay in performance or breach by ~~telephone and believed~~ 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 ~~it to be made by~~ any other Lender or the ~~proper Person, and shall not incur~~ Borrower or any ~~liability for relying thereon~~Subsidiary of any of their respective obligations hereunder or in connection herewith. The Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for Level 3 or the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it 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 in accordance with the advice of ~~any~~ such counsel~~, accountants or experts.~~ . (c) The Lenders hereby acknowledge that the Agent ~~may perform~~ shall not be under any ~~and all its duties and exercise its rights and powers~~ duty to take any discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Required Lenders. (d) Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the ~~right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ right to appoint a ~~successor~~successor Agent acceptable to the Borrower. If no successor shall have been so appointed by the Required Lenders 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, appoint a successor ~~Agent which~~ Agent, having a combined capital and surplus of at least $5,000,000,000 (or such lower amount as shall be ~~a Lender or a bank with an office in New York, New York,~~ acceptable to the Borrower) or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of ~~its~~ any appointment as Agent 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 ~~Agent,~~ Agent and the ~~retiring~~ Agent shall be discharged from its duties and obligations hereunder~~. The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor~~. After the Agent’s resignation hereunder, the provisions of this Article and Section ~~9.03~~ 8.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as the Agent. (e) With respect to the Extensions of Credit made by it hereunder, ▇▇▇▇▇ Fargo, in its individual capacity and not as Agent, shall have the same rights, obligations and powers as any other Lender and may exercise the same as though it were not the Agent, and the Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not Agent. (f) Each Lender agrees (i) to reimburse the Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if all of the Commitments shall have been terminated, the amount of its percentage of Loans) of any expenses incurred for the benefit of the Lenders, in its role as Agent, 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 Borrower (but without limiting the Borrower’s obligation to make such reimbursement) and (ii) to indemnify and hold harmless the Agent and any of its 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 it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrower; provided that no Lender shall be liable to the 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 the Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agent of expenses or other amounts referred to in this subsection (f) shall be conclusive and binding for all purposes, absent manifest error. (g) Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender or any Joint Lead Arranger, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agent or any other Lender or any Joint Lead Arranger, 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. (h) No Joint Lead Arranger shall have any duties, liabilities, obligations or responsibilities under this Agreement other than, if applicable, in such Person’s role as a Credit Party. (i) [Reserved]. (j) [Reserved]. (k) [Reserved]. (l) The Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Agent shall not (i) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (ii) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution.

Appears in 1 contract

Sources: Term Loan Credit Agreement (Oncor Electric Delivery Co LLC)

The Agent. In order to expedite the transactions contemplated by this Agreement, The Chase Manhattan Bank is hereby appointed to act as Agent on behalf of the Lenders. Each of the Lenders hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such actions on ~~its~~ behalf of such Lender and to exercise such powers as are specifically delegated to the Agent by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent ~~shall not have~~ is hereby expressly authorized by the Lenders, without hereby limiting any ~~duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing~~implied authority, (a) to receive on behalf of the ~~Agent shall not 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) ~~the 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 Agent is required to exercise in writing by the Required Lenders (or such other number or percentage give notice on behalf of each of the Lenders ~~as shall be necessary under~~ to the ~~circumstances as provided~~ Borrowers of any Event of Default specified in ~~Section 9.02), and shall not have any duty to take any action or exercise any powers that would result~~ this Agreement of which the Agent has actual knowledge acquired in ~~the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders,~~ connection with its agency hereunder; and (c) ~~except~~ to distribute to each Lender copies of all notices, financial statements and other materials delivered pursuant to this Agreement as ~~expressly set forth in~~ received by the ~~Loan Documents,~~ Agent. Neither the Agent nor any of its directors, officers, employees or agents shall ~~not have any duty to disclose, and shall not~~ be liable to the Lenders as such for any action taken or omitted by any of them except for its or his own gross negligence or wilful misconduct, or be responsible for any statement, warranty or representation herein or the ~~failure to disclose~~contents of any document delivered in connection herewith (other than any statement, ~~any information~~ representation or warranty relating to ~~▇▇▇▇▇ ▇~~the Agent or relating to the functions of the Agent hereunder), or be required to ascertain or to make any inquiry concerning the performance or observance by any Borrower or of any of the ~~Subsidiaries of Level 3 that is communicated to~~ terms, conditions, covenants or ~~obtained by the institution serving as Agent or any of its Affiliates~~ agreements contained in any ~~capacity~~Loan Document. The Agent shall not be ~~liable~~ responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any ~~action taken~~ other Loan Documents or ~~not taken~~ other instruments or agreements. The Agent may deem and treat the payee of any note referred to in Section 2.07 as the owner thereof for all purposes hereof until it shall have received from the payee of such note notice, given as provided herein, of the transfer thereof. The Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by ~~it with the consent or at the request of~~ the Required Lenders (and, except as otherwise specifically provided herein, such instructions and any action or ~~such other number or percentage of the Lenders as~~ inac- tion pursuant thereto shall be ~~necessary under~~ binding on all the ~~circumstances as provided in Section 9.02) or~~ Lenders. The Agent shall, in the absence of ~~its own gross negligence or willful misconduct. The Agent shall be deemed not to have~~ knowledge ~~of any Default unless and until written notice thereof is given~~ to the ~~Agent by ▇▇▇▇▇ ▇~~contrary, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall 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. ~~The~~ Neither the Agent ~~also may rely upon~~ nor any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ any Borrower on account of the failure of or delay in performance or breach by ~~telephone and believed~~ 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 ~~it to be made by the proper Person, and shall not incur~~ any ~~liability for relying thereon~~other Lender or any Borrower of any of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. The Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for Level 3 or the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it 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 in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. The Lenders hereby acknowledge that the Agent ~~may perform~~ shall be under no duty to take any ~~and all its duties and exercise its rights and powers~~ discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Borrowers. Upon any such resignation, the Required Lenders shall have the ~~right, with, so long as no Default or Event of Default shall have occurred and be continuing,~~ right to appoint a successor subject to the written consent of ~~Level 3~~ the Company to such successor (which consent ~~shall~~ will not be unreasonably ~~withheld or delayed) to appoint a successor~~withheld). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a ~~Lender or a~~ bank with ~~an office~~ offices in New York, New ~~York~~York and London, England, having a combined capital and surplus of at least $500,000,000 or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of ~~its~~ any appointment as Agent 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 ~~Agent,~~ Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor.~~ After the Agent’s 's resignation hereunder, the provisions of this Article and Section ~~9.03~~ 10.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Agent. With respect to the Loans made by it hereunder, the Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not the Agent, and the Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Borrower or any Subsidiary or other Affiliate thereof as if it were not the Agent. Each Lender agrees (i) to reimburse the Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, on its Commitment most recently in effect) of any expenses incurred for the benefit of the Lenders by the Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which the Borrowers shall be obligated to reimburse under Section 10.05 but which shall not have been reimbursed by the Borrowers and (ii) to indemnify and hold harmless the Agent and any of its 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 it in its capacity as the Agent or any of them in any way relating to or arising out of the Agent's role under this Agreement or any other Loan Document or any action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Borrowers; provided, however, that no Lender shall be liable to the 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 the Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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~~ Document, any related agreement or any document furnished hereunder or thereunder. The Co-Agent shall not have any responsibilities or obligations as Co-Agent under any of the Loan Documents.

Appears in 1 contract

Sources: Competitive Advance and Multi Currency Revolving Credit Facility Agreement (Manor Care Inc/New)

The Agent. In order to expedite the transactions contemplated by this Agreement, Citibank is hereby appointed to act as Agent on behalf of the Lenders. Each of the Lenders hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such actions on ~~its~~ behalf of such Lender and to exercise such powers as are specifically delegated to the Agent by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent ~~shall not have any duties or obligations except those~~ is hereby expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made authorized by the Lenders, without hereby limiting any implied authority, (i) 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, (ii) to give notice on behalf of each of the Lenders to the Borrower of any Event of Default of which the Agent has actual knowledge acquired in connection with its agency hereunder, and (ciii) ~~except as expressly set forth in the Loan Documents~~to distribute to each Lender copies of all notices, ~~the Agent shall not have any duty to disclose,~~ financial statements and ~~shall not be liable for the failure to disclose, any information relating to ▇▇▇▇▇ ▇,~~ other materials delivered by the Borrower ~~or any~~ pursuant to this Agreement as received by the Agent. None of the ~~Subsidiaries of Level 3 that is communicated to or obtained by the institution serving as~~ Agent or any of its ~~Affiliates~~ directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any ~~capacity~~inquiry concerning the performance or observance by the Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agent shall not be ~~liable~~ responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agent may deem and treat the Lender that makes any ~~action taken~~ 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 Agent shall in all cases be fully protected in acting, or ~~not taken~~ refraining from acting, in accordance with written instructions signed by ~~it with the consent or at the request of~~ the Required Lenders (and, except as otherwise specifically provided herein, such instructions and any action or ~~such other number or percentage of the Lenders as~~ inaction pursuant thereto shall be ~~necessary under~~ binding on all the ~~circumstances as provided in Section 9.02) or~~ Lenders. The Agent shall, in the absence of ~~its own gross negligence or willful misconduct. The Agent shall be deemed not to have~~ knowledge ~~of any Default unless and until written notice thereof is given~~ to the ~~Agent by ▇▇▇▇▇ ▇~~contrary, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall 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. ~~The~~ None of the Agent ~~also may rely upon~~ or any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ the Borrower on account of the failure of or delay in performance or breach by ~~telephone and believed~~ 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 ~~it to be made by~~ any other Lender or the ~~proper Person, and shall not incur~~ Borrower of any ~~liability for relying thereon~~of their respective obligations hereunder or in connection herewith. The Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for Level 3 or the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it 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 in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. The Lenders hereby acknowledge that the Agent ~~may perform~~ shall not be under any ~~and all its duties and exercise its rights and powers~~ duty to take any discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the ~~right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ right to appoint a ~~successor~~successor Agent acceptable to the Borrower. If no successor shall have been so appointed by the Required Lenders 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, appoint a successor ~~Agent which shall be~~ Agent, having a ~~Lender or a bank with an office in New York, New York,~~ combined capital and surplus of at least $500,000,000 or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of ~~its~~ any appointment as Agent 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 ~~Agent,~~ Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor.~~ After the Agent’s 's resignation hereunder, the provisions of this Article and Section ~~9.03~~ 8.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Agent. With respect to the Loans made by it hereunder, Citibank, in its individual capacity and not as the Agent, shall have the same rights and powers as any other Lender and may exercise the same as though it were not the Agent, and the Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, 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 Borrower and (ii) to indemnify and hold harmless the Agent and any of its 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 that may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrower; provided that no Lender shall be liable to the 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 the Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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. NEITHER CITIGROUP GLOBAL MARKETS, INC., BY VIRTUE OF ITS DESIGNATION AS "LEAD ARRANGER" ON THE COVER PAGE OF THIS AGREEMENT, NOR BANC OF AMERICA SECURITIES, LLC OR CREDIT SUISSE FIRST BOSTON, BY VIRTUE OF ITS DESIGNATION AS A "CO-SYNDICATION AGENT" ON THE COVER PAGE OF THIS AGREEMENT, NOR COMMERZBANK AG, NEW YORK AND CAYMAN ISLAND BRANCHES OR SUMITOMO MITSUI BANKING CORPORATION, BY VIRTUE OF ITS DESIGNATION AS A "CO-DOCUMENTATION AGENT" ON THE COVERAGE PAGE OF THIS AGREEMENT, SHALL HAVE ANY DUTIES, LIABILITIES, OBLIGATIONS OR RESPONSIBILITIES UNDER THIS AGREEMENT.

Appears in 1 contract

Sources: Revolving Credit Agreement (Txu Corp /Tx/)

The Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the Agent and the Co-Collateral Agent (each, an “Appointed Agent”) as its agent and authorizes ~~the~~ each Appointed Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to ~~the~~ each Appointed Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In Without limiting the ~~event~~ generality of the ~~institution~~ foregoing, the Agent shall have the sole and exclusive authority to (a) act as the disbursing and collecting agent for Lenders with respect to all payments and collections arising in connection with the Loan Documents; (b) execute and deliver as agent each Loan Document, including any intercreditor or subordination agreement, and accept delivery of each Loan Document from any Loan Party or other Person; (c) act as collateral agent for Secured Parties for purposes of perfecting and administering Liens under the Loan Documents, and for all other purposes stated therein; (d) together with the Co-Collateral Agent, manage, supervise or otherwise deal with Collateral; and (e) take any enforcement action or otherwise exercise any rights or remedies with respect to any Collateral under the Loan Documents, Applicable Law or otherwise. The Appointed Agents alone shall be authorized to determine whether any Accounts or Inventory constitute Eligible Receivables or Eligible Inventory, or whether to impose or release any reserve, which determinations and judgments, if exercised in good faith, shall exonerate each Appointed Agent from liability to any Lender or other Person for any error in judgment. Any bank serving as ~~the~~ an Appointed Agent hereunder ~~shall also be a Lender, it~~ 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~~ an Appointed Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the ~~Borrower~~ Loan Parties or any ~~Subsidiary~~ subsidiary of a Loan Party or other Affiliate thereof as if it were not the Agent hereunder. For the purposes of creating a solidarité active in accordance with Article 1541 of the Civil Code of Québec between each Secured Party, taken individually, on the one hand, and the Agent, on the other hand, each Loan Party and each such Secured Party acknowledge and agree with the Agent that such Secured Party and the Agent are hereby conferred the legal status of solidary creditors of each such Loan Party in respect of all Obligations owed by each such Loan Party to the Agent and such Secured Party hereunder and under the other Loan Documents (collectively, the “Solidary Claim”) and that, accordingly, but subject (for the avoidance of doubt) to Article 1542 of the Civil Code of Québec, each such Obligor is irrevocably bound towards the Agent and each Secured Party in respect of the entire Solidary Claim of the Agent and such Secured Party. As a result of the foregoing, the parties hereto acknowledge that the Agent and each Secured Party shall at all times have a valid and effective right of action for the entire Solidary Claim of the Agent and such Secured Party and the right to give full acquittance for it. Accordingly, and without limiting the generality of the foregoing, the Agent, as solidary creditor with each Secured Party, shall at all times have a valid and effective right of action in respect of the Solidary Claim and the right to give a full acquittance for same. By its execution of the Loan Documents to which it is a party, each such Loan Party not a party hereto shall also be deemed to have accepted the stipulations hereinabove provided. The parties further agree and acknowledge that such Liens (hypothecs) under the Collateral Documents and the other Loan Documents shall be granted to the Agent, for its own benefit and for the benefit of the Secured Parties, as solidary creditor as hereinabove set forth. No Appointed Agent shall ~~not~~ have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) ~~the~~ no Appointed Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the~~ no Appointed 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~~ such Appointed 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, ~~the~~ no Appointed Agent shall ~~not~~ have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇, the Borrower~~ any Loan Party or any of ~~the Subsidiaries of Level 3~~ its subsidiaries that is communicated to or obtained by the ~~institution~~ bank serving as an Appointed Agent or any of its Affiliates in any capacity. ~~The~~ No Appointed 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 of, or for any losses not directly and solely caused by, its own gross negligence or willful misconduct. ~~The~~ No Appointed Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to ~~the~~ such Appointed Agent by ~~▇▇▇▇▇ ▇,~~ the Borrower Agent or a Lender, and ~~the~~ no Appointed 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 ~~thereunder~~ hereunder or in connection ~~therewith~~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 (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. ~~As to~~ If any ~~matters not expressly provided for by this Agreement~~ Lender acquires knowledge of a Default or Event of Default, it shall promptly notify the Agent and the other Lenders thereof in writing. Each Lender agrees that, except as otherwise provided in any Loan Documents ~~(including enforcement~~ or ~~collection),~~ with the ~~Administrative~~ written consent of the Agent and the ~~Collateral Agent shall~~ Required Lenders, it will not ~~be required to~~ take any enforcement action, accelerate the Obligations under any Loan Documents, or exercise any ~~discretion~~ right that it might otherwise have under Applicable Law to credit bid at foreclosure sales, UCC or ~~take any action, but shall be required to act~~ PPSA sales or ~~to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon~~ other similar dispositions of Collateral. Notwithstanding the ~~instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided~~foregoing, however, a Lender may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the ~~Administrative Agent and~~ Obligations held by such Lender, including the ~~Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent~~ filing of proofs of claim in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable lawa Bankruptcy Proceeding. ~~The~~ Each Appointed Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. ~~The~~ Each Appointed Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. ~~The~~ Each Appointed Agent may consult with legal counsel (who may be counsel for ~~Level 3 or the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The~~ Each Appointed Agent may perform any and all its duties and exercise its rights and powers by or through any one or more agents, co-agents or sub-agents appointed by ~~the~~ such Appointed Agent. ~~The~~ Each Appointed Agent and any such agents, co-agents or sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The Lenders shall execute and deliver such documents as any Appointed Agent deems appropriate to vest any rights or remedies in such agents, co-agents or sub-agent. The exculpatory provisions of the preceding paragraphs shall apply to any such agents, co-agents or sub-agent and to the Related Parties of ~~each~~ any Appointed Agent and any agents, co-agents or 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 such Appointed Agent. Subject to the appointment and acceptance of a successor to any Appointed Agent as provided in this paragraph, ~~the~~ any Appointed Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Issuing Banks and ~~Level 3~~the Borrower Agent. Upon any such resignation, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing,~~ with the consent ~~of Level 3~~ (~~which consent shall~~ not to be unreasonably withheld or delayed) of the Company, to appoint a successor; provided that, during the existence and continuation of an Event of Default, no consent of the Company shall be required. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Appointed Agent gives notice of its resignation, then the retiring Appointed Agent may, on behalf of the ~~Lenders~~Lenders and the Issuing Banks, appoint a successor Appointed Agent which shall be a ~~Lender or a~~ commercial bank ~~with an office in New York, New York,~~ or an Affiliate of ~~such Lender or~~ any such ~~bank~~commercial bank and, so long as no Event of Default shall have occurred and be continuing, shall be reasonably acceptable to the Company. Upon the acceptance of its appointment as an Appointed Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Appointed Agent, and the retiring Appointed Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the ~~Borrower~~ Company to a successor Appointed Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Company and such successor. After the Appointed Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Appointed 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 Appointed Agent. Any successor to Bank of America, N.A. by merger or acquisition of stock or this loan shall continue to be the Agent hereunder without further act on the part of the parties hereto, unless such successor resigns as provided above. Each Lender acknowledges that it has, independently and without reliance upon ~~the~~ any Appointed Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon ~~the~~ any Appointed 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 any Appointed Agent; (b) no Appointed Agent (i) makes 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 or (ii) shall 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 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 each Appointed 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 attorneys’ fees) incurred by any Appointed 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 and any action such Lender may take as a result of or any conclusion it may draw from any such Report. The co-arrangers, joint bookrunners and syndication agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.

Appears in 1 contract

Sources: Credit Agreement (Nexeo Solutions Finance Corp)

The Agent. Each of the Lenders hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3,~~ the ~~Borrower~~ Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇, the Borrower~~ any Loan Party or any of ~~the~~ its Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇,~~ the U.S. Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~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 (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the ~~Borrower~~Loan Parties), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~each~~ the 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 Agent. Each of the Lenders, the Issuers and the Loan Parties agree, that the Agent may, but shall not be obligated to, make the Approved Electronic Communications available to the Lenders, the Issuing Bank and the LC Facility Issuing Bank by posting such Approved Electronic Communications on IntraLinks™ or a substantially similar electronic platform chosen by the Agent to be its electronic transmission system (the “Approved Electronic Platform”). Although the Approved Electronic Platform and its primary web portal are secured with generally-applicable security procedures and policies implemented or modified by the Agent from time to time (including, as of the Closing Date, a dual firewall and a User ID/Password Authorization System) and the Approved Electronic Platform is secured through a single-user-per-deal authorization method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders, the Issuing Bank and the LC Facility Issuing Bank and the Loan Parties acknowledge and agree that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution. In consideration for the convenience and other benefits afforded by such distribution and for the other consideration provided hereunder, the receipt and sufficiency of which is hereby acknowledged, each of the Lenders, the Loan Parties and the Issuing Bank and the LC Facility Issuing Bank hereby approve distribution of the Approved Electronic Communications through the Approved Electronic Platform and understands and assumes the risks of such distribution. The Approved Electronic Communications and the Approved Electronic Platform are provided “as is” and “as available.” None of the Agent or any of its Affiliates or any of their respective officers, directors, employees, agents, advisors or representatives (the “Agent Affiliates”) warrant the accuracy, adequacy or completeness of the Approved Electronic Communications and the Approved Electronic Platform and each expressly disclaims liability for errors or omissions in the Approved Electronic Communications and the Approved Electronic Platform. No warranty of any kind, express, implied or statutory (including, without limitation, any warranty of merchantability, fitness for a particular purpose, noninfringement of third party rights or freedom from viruses or other code defects) is made by the Agent Affiliates in connection with the approved electronic communications or the approved electronic platform. Each of the Lenders, the Issuing Bank, the LC Facility Issuing Bank, and the Loan Parties agrees that the Agent may, but (except as may be required by applicable law) shall not be obligated to, store the Approved Electronic Communications on the Approved Electronic Platform in accordance with the Agent’s generally-applicable document retention procedures and policies. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, the Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Issuing Bank, the LC Facility Issuing Bank and ~~Level 3~~the U.S. Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing,~~ with the consent ~~of Level 3~~ (~~which consent shall~~ not to be unreasonably withheld or delayed) of the U.S. Borrower, to appoint a successor; provided that, during the existence and continuation of an Event of Default, no consent of the U.S. Borrower shall be required. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, the Issuing Bank and the LC Facility Issuing Bank appoint a successor Agent which shall be a ~~Lender or a~~ commercial bank ~~with an office in New York, New York,~~ or an Affiliate of ~~such Lender or~~ any such ~~bank~~commercial bank reasonably acceptable to the U.S. Borrower. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the ~~Borrower~~ Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrowers and such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Agent, its ~~sub-agents~~ sub‑agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Any such resignation by the Agent hereunder shall, unless otherwise consented to by such Agent, also constitute the resignation of such Agent (and its Affiliates) as a Swingline Lender hereunder (in which case the U.S. Borrower may appoint a replacement Swingline Lender reasonably acceptable to the new Agent). Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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. The co-arrangers, joint bookrunners, co-syndication agents and the co-documentation agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Each Lender authorizes and directs the Agent to, upon the request of the U.S. Borrower, enter into any Receivables Facility Intercreditor Agreement with any agent under any Receivables Facility of the U.S. Borrower or any of its Restricted Subsidiaries and each Lender agrees to be bound by the terms thereof that are applicable to it thereunder. Any supplement to this agreement effecting any Subsidiary of the U.S. Borrower becoming an Additional Foreign Borrower may include “parallel debt” provisions or similar customary provisions for credit facilities of borrowers organized in the jurisdiction of organization of such Additional Foreign Borrower.

Appears in 1 contract

Sources: Amendment Agreement (ARAMARK Holdings Corp)

The Agent. Each of the ~~Lenders~~ Funds hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions delegated to it hereby on its ~~behalf~~ behalf, including execution of the other Fund Documents, and to exercise such powers as are delegated to the Agent by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the ~~Loan~~ Fund Documents. Without limiting the generality of the foregoing, , (a) ~~the~~ Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, , (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the ~~Loan~~ Fund Documents that the Agent is required to exercise in writing as directed by the ~~Required Lenders~~ Majority Funds (or such other number or percentage of the ~~Lenders~~ Funds as shall be necessary under the circumstances as provided in Section ~~9.02~~11.04), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and and (c) except as expressly set forth in the ~~Loan~~ Fund Documents, ~~the~~ Agent shall not have any duty to disclose, ~~and~~ or shall ~~not~~ be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇,~~ the ~~Borrower~~ Obligors or any of ~~the~~ their Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ Person serving as the Agent or any of its Affiliates in any capacity. Without limiting the foregoing, the Agent shall not be required to act hereunder or to advance its own funds or otherwise incur any financial liability in the performance of its duties or the exercise of its rights hereunder and under any other agreements or documents to which it is a party, and shall in all cases be fully justified in failing or refusing to act hereunder unless it shall receive further assurances to its reasonable satisfaction from the Funds of their indemnification obligations against any and all liability and expense that may be incurred by it by reason of taking or continuing to take or refraining from taking any such action in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and non-appealable decision. The Agent shall be fully justified in requesting direction from the Majority Funds in the event this Agreement or any other Fund Document is silent or vague with respect to such Agent’s duties, rights or obligations. 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~~ Majority Funds (or such other number or percentage of the ~~Lenders~~ Funds as shall be necessary under the circumstances as provided in Section ~~9.02~~11.04) or in the absence of its own gross negligence or willful ~~misconduct~~misconduct as determined by a court of competent jurisdiction in a final and non-appealable decision. ~~The~~ Agent shall not be deemed ~~not~~ to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇, the Borrower~~ an Obligor or a ~~Lender~~Fund, and ~~the~~ Agent shall not be responsible for or have any duty to ascertain or inquire ~~into~~ into (i) any statement, warranty or representation made in or in connection with any ~~Loan~~ Fund Document, including without limitation any ERISA matters, issues or obligations that may arise out of the Transactions, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith,~~ herewith, (iii) the accuracy or calculation of any amounts of any of the Deferred Pension Payments, (iv) the performance or observance by the Obligors of any of the covenants hereunder, (v) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any ~~Loan Document,~~ Fund Document or the Senior Credit Facility, (ivvi) the validity, enforceability, effectiveness or genuineness of any ~~Loan~~ Fund Document or any other agreement, instrument or document, (vii) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral or (vviii) the satisfaction of any condition set forth in Article IV V or elsewhere in any ~~Loan~~ Fund Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or the Borrower~~any Obligor), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~each~~ the 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 Agent~~. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, the Agent may resign at any time by notifying the ~~Lenders~~ Funds and ~~Level 3~~the Obligors. Upon any such resignation, the ~~Required Lenders~~ Obligors and the Majority Funds shall ~~have the right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed) to~~ jointly appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a Lender or a bank with an office in New York, New York, or an Affiliate of such Lender or any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. If no successor shall have been so appointed by the Obligors and the Majority Funds within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent’s resignation shall nevertheless thereupon become effective, and the Majority Funds shall assume and perform all of the duties of the Agent hereunder until such time as a successor Agent is appointed; provided, that the retiring Agent shall continue to act as the secured party under the Mortgages until such Mortgages can be transitioned to a substitute secured party designated by the Majority Funds with the consent of the Primary Obligors. The fees payable by ~~Level 3 and~~ the ~~Borrower~~ Obligors to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between such Obligors and such successor. After ~~the~~ an Agent’s resignation hereunder, the provisions of this Article ~~and Section 9.03~~ shall continue in effect for the benefit of such retiring 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 Agent. Each ~~Lender~~ Fund acknowledges that it has, independently and without reliance upon the ~~Agent~~ Agent, or any other ~~Lender~~ Fund 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~~ Fund also acknowledges that it will, independently and without reliance upon the Agent or any other ~~Lender~~ Fund, 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~~ Fund Document or any related agreement or any document furnished hereunder or thereunder. The Funds are not partners or co-venturers, and all obligations of each Fund under this Agreement are several. No Fund shall be responsible for or in any way liable for the acts or omissions, representations or agreements of, or shall be authorized to act for, any other Fund. In its capacity, the Agent is a “representative” of the Funds within the meaning of the term “secured party” as defined in the UCC. Each Fund authorizes the Agent to enter into each of the Collateral Documents and the Intercreditor Agreement to which it is a party and to take all actions contemplated by such documents. Each Fund agrees that no Fund shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Agent for the benefit of the Funds upon the terms of the Collateral Documents at the direction of the Majority Funds. If Collateral is hereafter pledged by any Person as collateral security for the Obligations, the Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Funds any Fund Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of or for the benefit of the Agent, on behalf of Funds. The Funds hereby irrevocably authorize the Agent, to release any Liens granted to or for the benefit of the Agent by the Obligors or any of their Subsidiaries on any Collateral: (i) upon payment in full of the Obligations (other than contingent obligations not due and payable); or (ii) that is sold or to be sold concurrently as part of or in connection with any sale permitted under the Fund Documents. Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Obligors in respect of) all interests retained by the Obligors, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral. Upon request by the Agent at any time, the Majority Funds will confirm in writing the Agent’s authority to release particular types or items of Collateral pursuant hereto. Upon any sale or transfer of assets constituting Collateral which is permitted pursuant to the terms of any Fund Document, or consented to in writing by the Majority Funds or all of the Funds, as applicable, the Agent shall (and is hereby irrevocably authorized by the Funds to) execute such documents as may be necessary to evidence the release of the Liens granted to the Agent for the Funds herein or pursuant hereto upon the Collateral that was sold or transferred; provided, however, that (i) the Agent shall not be required to execute any such document on terms which, in the Agent’s opinion, would expose the Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens upon (or obligations of the Obligors in respect of) all interests retained by the Obligors, including the proceeds of the sale, all of which shall continue to constitute part of the Collateral. Each Fund hereby appoints each other Fund as its agent for the purpose of perfecting Liens, for the benefit of the Agent and the other Funds, in assets which, in accordance with Article 9 of the UCC or any other applicable law can be perfected only by possession. Should any Fund obtain possession of any such Collateral, such Fund shall notify the Agent thereof, and, promptly upon the Agent’s request therefor shall deliver such Collateral to the Agent or otherwise deal with such Collateral in accordance with the Agent’s instructions.

Appears in 1 contract

Sources: Contribution Deferral Agreement (Yrc Worldwide Inc)

The Agent. In order to expedite the transactions contemplated by this Agreement, JPMorgan Chase Bank, N.A. is hereby appointed to act as Agent on behalf of the Banks. Each of the ~~Lenders~~ Banks, and each transferee of any Bank, hereby irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such actions on ~~its~~ behalf of such Bank or transferee and to exercise such powers as are specifically delegated to the Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. In the event the institution serving as the Agent hereunder shall also be a Lender, it 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 Agent, and such institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Level 3, the Borrower or any Subsidiary or Affiliate thereof as if it were not the Agent hereunder. The Agent ~~shall not have~~ is hereby expressly authorized by the Banks, without hereby limiting any ~~duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing~~implied authority, (a) to receive on behalf of the ~~Agent shall not be subject~~ Banks all payments of principal of and interest on the Loans and all other amounts due to ~~any fiduciary or other implied duties~~the Banks hereunder, ~~regardless~~ and promptly to distribute to each Bank its proper share of ~~whether a Default has occurred and is continuing,~~ each payment so received; (b) to give notice on behalf of each of the Banks to the Borrower of any Event of Default specified in this Agreement of which the 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 Agent is required to exercise has actual knowledge acquired in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, connection with its agency hereunder; and (c) ~~except~~ to distribute to each Bank copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as ~~expressly set forth in~~ received by the ~~Loan Documents,~~ Agent. Neither the Agent nor any of its directors, officers, employees or agents shall ~~not have any duty to disclose, and shall not~~ be liable as such for any action taken or omitted by any of them except for its or his own gross negligence or wilful misconduct, or be responsible for any statement, warranty or representation herein or the ~~failure~~ contents of any document delivered in connection herewith, or be required to ~~disclose,~~ ascertain or to make any ~~information relating to ▇▇▇▇▇ ▇,~~ inquiry concerning the performance or observance by the Borrower or of any of the ~~Subsidiaries of Level 3 that is communicated to~~ terms, conditions, covenants or ~~obtained by the institution serving as Agent or any of its Affiliates~~ agreements contained in any ~~capacity~~Loan Document. The Agent shall not be ~~liable~~ responsible to the Banks for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Banks and, except as otherwise specifically provided herein, such instructions and 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~~ inaction pursuant thereto shall be ~~necessary under~~ binding on all the ~~circumstances as provided in Section 9.02) or~~ Banks. The Agent shall, in the absence of ~~its own gross negligence or willful misconduct. The Agent shall be deemed not to have~~ knowledge ~~of any Default unless and until written notice thereof is given~~ to the ~~Agent by ▇▇▇▇▇ ▇~~contrary, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall 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. ~~The~~ Neither the Agent ~~also may rely upon~~ nor any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ the Borrower on account of the failure of or delay in performance or breach by ~~telephone and believed~~ any Bank of any of its obligations hereunder or to any Bank on account of the failure of or delay in performance or breach by ~~it to be made by~~ any other Bank or the ~~proper Person, and shall not incur~~ Borrower of any ~~liability for relying thereon~~of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. The Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for Level 3 or the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it 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 in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. The Banks hereby acknowledge that the Agent ~~may perform~~ shall be under no duty to take any ~~and all its duties and exercise its rights and powers~~ discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as AgentRequired Banks. Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the ~~Lenders~~ Banks and ~~Level 3~~the Borrower. Upon any such resignation, the Required ~~Lenders~~ Banks shall have the ~~right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ right to appoint a successor. If no successor shall have been so appointed by the Required ~~Lenders~~ Banks 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~~Banks, appoint a successor Agent ~~which shall be~~ having a ~~Lender or a bank with an office in New York, New York,~~ combined capital and surplus of at least $500,000,000 or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of ~~its~~ any appointment as Agent 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 ~~Agent,~~ Agent and the retiring Agent shall be discharged from its duties and obligations hereunder~~. The fees payable by Level 3 and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor~~. After the Agent’s resignation hereunder, the provisions of this Article and Section ~~9.03~~ 9.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Agent. With respect to the Loans made by it hereunder, the Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Bank and may exercise the same as though it were not the Agent, and the Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Agent. Each ~~Lender~~ Bank agrees (i) to reimburse the Agent, on demand, (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), in the amount of its pro rata share (based on its Commitment hereunder) of any expenses incurred for the benefit of the Banks by the Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Banks, which shall not have been reimbursed by the Borrower and (ii) to indemnify and hold harmless the Agent and any of its 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 it in its capacity as the Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or any action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Borrower; provided that no Bank shall be liable to the 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 the Agent or any of its directors, officers, employees or agents. Each Bank acknowledges that it has, independently and without reliance upon the Agent or any other ~~Lender~~ Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each ~~Lender~~ Bank also acknowledges that it will, independently and without reliance upon the Agent or any other ~~Lender~~ Bank and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any other Loan ~~Document or~~ Document, any related agreement or any document furnished hereunder or thereunder. Anything herein to the contrary notwithstanding, the Sole Bookrunner and Sole Lead Arranger listed on the cover page hereof shall not have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable and if any, as the Agent or a Bank hereunder.

Appears in 1 contract

Sources: 364 Day Competitive Advance and Revolving Credit Facility Agreement (Scripps E W Co /De)

The Agent. Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Agent as its agent and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In the event the institution~~ The bank serving as the Agent hereunder ~~shall also be a Lender, it~~ 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 Agent, and such ~~institution~~ bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3~~Holdings, the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the 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 shall not have any duty to take any action or exercise any powers that would result in the incurrence by it of costs or expenses unless arrangements satisfactory to it to ensure the prompt payment of all such costs or expenses shall have been made by the Lenders, and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~▇▇▇▇▇ ▇~~the Ultimate Parent, the Parent, Holdings, the Borrower or any of ~~the~~ its Subsidiaries ~~of Level 3~~ that is communicated to or obtained by the ~~institution~~ bank serving as Agent or any of its Affiliates in any ~~capacity~~capacity (other than as Agent). The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ~~▇▇▇▇▇ ▇~~Holdings, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for ~~Level 3 or~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor to the Agent as provided in this paragraph, the Agent may resign at any time by notifying the ~~Lenders~~ Lenders, the Issuing Bank and ~~Level 3~~the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with, so long as no Default or Event of Default shall have occurred and be continuing,~~ with the consent of ~~Level 3~~ the Borrower (~~which~~ such consent ~~shall~~ not to be unreasonably withheld or ~~delayed~~delayed and such consent not to be required if an Event of Default under clause (a), (b), (h) or (i) of Article VII has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the ~~Lenders~~Lenders and the Issuing Bank, appoint a successor Agent which shall be ~~a Lender or~~ a bank with an office in New York, New York, or an Affiliate of ~~such Lender or~~ any such bank. Upon the acceptance of its appointment as Agent and Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~Level 3 and~~ the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~with~~ between the Borrower and such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring 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 Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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 party hereto authorizes the Agent to enter into customary intercreditor agreements in connection with Securitizations permitted under this Agreement. The Arrangers, Issuing Bank and Syndication Agent shall be entitled to the benefits of this Article VIII.

Appears in 1 contract

Sources: Credit Agreement (Dex Media East LLC)

The Agent. In order to accomplish the transactions contemplated by this Agreement, BNY Asset Solutions LLC is hereby appointed to act as Agent on behalf of the Lenders. Each of the Lenders ~~hereby~~ and each subsequent holder of any Term Loan Note by its acceptance thereof, irrevocably ~~appoints the Agent as its agent and~~ authorizes the Agent to take such ~~actions~~ action on its behalf and to exercise such powers hereunder and under the Security Documents and other Loan Documents as are specifically delegated to or required of the Agent by the terms of hereof and the ~~Loan Documents,~~ terms thereof together with such ~~actions and~~ powers as are reasonably incidental thereto. Neither the Agent nor any of its directors, officers, members, managers, employees or agents shall be liable as such for any action taken or omitted to be taken by it or them hereunder or under any of the Security Documents and other Loan Documents or in connection herewith or therewith (a) at the request or with the approval of the Required Term Loan A Lenders (or in the event that the Term Loan A is paid in full, the Required Term Loan B Lenders) or the Required Lenders, as the context requires (or, if otherwise specifically required hereunder or thereunder, the consent of all the Lenders, or all of the Term Loan A Lenders or all of the Term Loan B Lenders) or (b) in the absence of its or their own gross negligence or willful misconduct. The Agent shall not have or be deemed to have any fiduciary duty to any Lender. The Agent is hereby expressly authorized on behalf of the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of each of the Lenders any payment of principal of or interest on the Term Loan Notes outstanding hereunder and all other amounts accrued hereunder paid to the Agent, and promptly to distribute to each Lender its proper share of all payments and insurance proceeds so received, (b) to distribute to each Lender copies of all notices, agreements and other material as provided for in this Agreement or in the Security Documents and other Loan Documents as received by such Agent and (c) to take all actions with respect to this Agreement and the Security Documents and other Loan Documents as are specifically delegated to the Agent. With respect to the release of Collateral, the Lenders hereby irrevocably authorize the Agent, at its option and in its discretion, to release any Lien granted to or held by the Agent upon any property covered by this Agreement or the other Loan Documents (i) upon termination or expiration of the Commitments, the payment and satisfaction of all obligations arising with respect to the Term Loans, all fees and expenses, or (ii) constituting property being sold or disposed of in compliance with the provisions of the Loan Documents (and the Agent may rely in good faith conclusively on any certificate stating that the property is being sold or disposed of in compliance with the provisions of the Loan Documents, without further inquiry); provided, however, that (x) the Agent shall not be required to execute any release on terms which, in the Agent's opinion, would expose the Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (y) such release shall not in any manner discharge, affect or impair any Liens upon all interests retained, all of which shall continue to constitute part of the property covered by the Loan Documents. In the event that (a) the ~~institution serving as~~ Borrower fails to pay when due the principal of or interest on any Term Loan Note or any fee payable hereunder or (b) the Agent ~~hereunder~~ receives written notice of or otherwise becomes aware of the occurrence of a Default or an Event of Default, the Agent shall ~~also be a Lender~~promptly give written notice thereof to the Lenders, and shall take such action with respect to such Event of Default or other condition or event as it shall be directed to take by the Required Term Loan A Lenders (but shall not be required to take any such actions which violate any law or any term of this Agreement or any other Loan Document); provided, however, that, unless and until the Agent shall have received such directions, the ~~same~~ Agent may take such action or refrain from taking such action hereunder or under the Security Documents or other Loan Documents with respect to a Event or Event of Default as it shall deem advisable in the best interests of the Lenders. The Agent shall not be responsible in any manner to any of the Lenders for the effectiveness, enforceability, perfection, value, genuineness, validity or due execution of this Agreement, the Term Loan Notes or any of the other Loan Documents or Collateral or any other agreements or certificates, requests, financial statements, notices or opinions of counsel or for any recitals, statements, warranties or representations contained herein or in any such instrument or be under any obligation to ascertain or inquire as to the performance or observance of any of the terms, provisions, covenants, conditions, agreements or obligations of this Agreement or any of the other Loan Documents or any other agreements on the part of the Borrower and, without limiting the generality of the foregoing, the Agent shall, in the absence of Knowledge to the contrary, be entitled to accept any certificate furnished pursuant to this Agreement or any of the other Loan Documents as conclusive evidence of the facts stated therein and shall be entitled to rely on any note, notice, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document which it believes in good faith to be genuine and correct and to have been signed or sent by the proper Person or Persons. It is understood and agreed that the Agent may exercise its rights and powers under other agreements and instruments to which it is or may be a party, and engage in ~~its capacity as a Lender as any~~ other ~~Lender and may exercise~~ transactions with the ~~same~~ Borrower, as though it were not Agent of the ~~Agent~~Lenders hereunder. Neither the Agent nor any of its directors, officers, members, managers, employees or agents shall have any responsibility to the Borrower on account of the failure or delay in 120 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 the Borrower of any of its obligations hereunder or in connection herewith. The Agent may consult with legal counsel selected by it in connection with matters arising under this Agreement or any of the other Loan Documents and any action taken or suffered in good faith by it in accordance with the opinion of such ~~institution~~ counsel shall be full justification and protection to it. The Agent may exercise any of its powers and rights and perform any duty under this Agreement or any of the other Loan Documents through agents or attorneys. The Agent and the Borrower may deem and treat the payee of any Term Loan Note as the holder thereof until written notice of transfer shall have been delivered as provided herein by such payee to the Agent and the Borrower. The Agent and/or its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~Level 3~~the Borrower, ~~the Borrower~~ or ~~any Subsidiary or Affiliate~~ other affiliate thereof as if it were not the Agent. (i) to reimburse the Agent ~~hereunder. The Agent shall not have any duties or obligations except those expressly set forth~~ in the ~~Loan Documents. Without limiting~~ amount of such Lender's pro rata share (based on its Commitment hereunder) of any expenses incurred for the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage benefit of the Lenders ~~as shall be necessary under~~ by the ~~circumstances as provided in Section 9.02)~~Agent, including counsel fees and ~~shall not have any duty to take any action or exercise any powers that would result in the incurrence by it~~ compensation of ~~costs or expenses unless arrangements satisfactory to it to ensure the prompt payment~~ agents paid for services rendered on behalf of ~~all such costs or expenses shall have been made by~~ the Lenders, not reimbursed by the Borrower and (cii) ~~except as expressly set forth~~ to indemnify and hold harmless the Agent and any of its directors, officers, members, managers, employees or agents, on demand, in the ~~Loan Documents~~amount of its pro rata share, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it or such directors, officers, members, managers, employees or agents in its or their capacity as, or acting on behalf of, the Agent ~~shall not have~~ in any ~~duty to disclose, and shall not be liable for the failure to disclose, any information~~ way relating to ~~▇▇▇▇▇ ▇, the Borrower~~ or arising out of this Agreement or any of the ~~Subsidiaries~~ other Loan Documents or any action taken or omitted by it or any of ~~Level 3 that is communicated~~ them under this Agreement or any of the other Loan Documents, to ~~or obtained~~ the extent not reimbursed by the ~~institution serving as~~ Borrower; provided, however, that no Lender shall be liable to the Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgment, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of the Agent or any of its ~~Affiliates~~ directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the Agent, or any 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 and any other Loan Document to which such Lender is party. Each Lender also acknowledges that it will, independently and without reliance upon the Agent, or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own decisions in ~~any capacity. The Agent shall not be liable for any action taken~~ taking or not ~~taken by it with the consent~~ taking action under or ~~at the request of the Required Lenders (or such~~ based upon this Agreement, any other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agent by ▇▇▇▇▇ ▇, the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, ~~(ii) the contents of~~ any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document related agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. As to any matters not expressly provided for by this Agreement and the other Loan Documents (including enforcement or collection), the Administrative Agent and the Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders, and such instructions shall be binding upon all Lenders, provided, however, that the Administrative Agent and the Collateral Agent shall not be required to take any action that (i) the Administrative Agent or the Collateral Agent in good faith believes exposes it to personal liability unless it receives an indemnification satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or applicable law. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for Level 3 or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agentfurnished hereunder. Subject to the appointment and acceptance of a successor Agent as provided ~~in this paragraph~~below, the Agent may resign at any time by notifying the Lenders and ~~Level 3~~the Borrower. Upon any such 121 resignation, the ~~Required~~ Lenders shall have the ~~right, with, so long as no Default or Event of Default shall have occurred and be continuing, the consent of Level 3 (which consent shall not be unreasonably withheld or delayed)~~ right to appoint a ~~successor~~successor Agent. If no successor Agent shall have been so appointed by ~~the Required~~ such Lenders 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 with the consent of the Borrower, which shall not be unreasonably withheld or delayed, appoint a successor Agent which shall be a ~~Lender~~ bank or ~~a bank~~ other financial institution with an office (or an Affiliate with an office) in New York, New York, ~~or an Affiliate~~ having a combined capital and surplus of ~~such Lender or any such bank~~at least $500,000,000. Upon the acceptance of ~~its~~ any appointment as Agent hereunder by a ~~successor~~successor bank, such successor shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Agent,~~ Agent and the retiring Agent shall be discharged from its duties and obligations ~~hereunder. The fees payable by Level 3~~ hereunder and under each of the ~~Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed with such successor~~other Loan Documents. After ~~the~~ any Agent’s 's resignation hereunder, the provisions of this Article ~~and Section 9.03~~ shall continue in effect for ~~the~~ its benefit ~~of such retiring Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Agent. ~~Each Lender acknowledges~~ The Lenders hereby acknowledge that ~~it has, independently and without reliance upon~~ the Agent shall be under no duty to take any discretionary action permitted to be taken by the Agent pursuant to the provisions of this Agreement or any of the other Loan Documents unless it shall be requested in writing to do so by the Required Term Loan A Lenders or Required Lenders, as the context so requires (and the Agent shall not be obligated to take any such requested action which violates applicable law or any terms of this Agreement or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the 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~~Document).

Appears in 1 contract

Sources: Loan and Facilities Agreement (Bh Re LLC)

Appears in 1 contract

Sources: Credit Agreement (Neiman Marcus, Inc.)

Common use of The Agent Clause in Contracts