The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent or 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 Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents 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. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents 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. The Lenders hereby acknowledge that the Agents shall be under no 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. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a 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, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an 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 each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunder.
Appears in 2 contracts
Samples: Credit Facility Agreement (Texas Utilities Co /Tx/), Credit Facility Agreement (Tu Acquisitions PLC)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank the Persons named in the heading of Texas, National Association is this Agreement are hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Canadian Administrative Agent on behalf of the LendersLenders and the Issuing Banks. Each of the Lenders Lenders, each assignee of any Lender and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee or Issuing Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is and, to the extent expressly provided herein, the Canadian Administrative Agent are hereby expressly authorized by the Lenders and the CAF AgentIssuing Banks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Banks all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent Issuing Banks hereunder, and promptly to distribute to each Lender and the CAF Agent or Issuing Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any 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 other Loan Party pursuant to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or the other instruments or agreementsLoan Documents as received by the Administrative Agent. The Agents may deem and treat Without limiting the Lender which makes any Loan as the holder generality of the indebtedness resulting therefrom for foregoing, the Administrative Agent is hereby expressly authorized to release any Subsidiary Guarantor from its obligations under the Subsidiary Guarantee Agreement in the event that all purposes hereof until it shall have received notice from the capital stock of such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto Guarantor shall be binding on all sold, transferred or otherwise disposed of to a Person other than the Lenders. Each of the Agents 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. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents 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. The Lenders hereby acknowledge that the Agents shall be under no 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. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a 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, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 Company or an Affiliate of the Company in a transaction not prohibited by this Agreement. It is understood and agreed that the use of the term “agent” herein or in any such bank. Upon other Loan Documents (or any other similar term) with reference to the acceptance Administrative Agent and the Canadian Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any appointment applicable law. Instead such term is used as Agent hereunder by a successor bankmatter of market custom, such successor and is intended to create or reflect only an administrative relationship between contracting parties. With respect to the Loans made by it hereunderunder this Agreement, each of the Agents, Agent in its individual capacity and not as an 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 each of the Agents and their Affiliates may accept deposits from, lend money to to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrowers Company or any Subsidiary or other Affiliate thereof as if it were not an AgentAgent under the Loan Documents and without any duty to account therefor to the Lenders. Each Lender agrees (i) to reimburse the Agents, on demand, The Agents shall not have any duties or obligations except those expressly set forth in the amount Loan Documents, and their duties under the Loan Documents shall be administrative in nature. Without limiting the generality of its pro rata share the foregoing, (based on its Commitment hereunder ora) no Agent shall be subject to any fiduciary or other implied duties, if the Commitments regardless of whether a Default has occurred and is continuing, (b) no Agent shall have been terminatedany duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the amount Loan Documents that such Agent is required to exercise upon receipt of its outstanding Loans) of any expenses incurred for notice in writing by the benefit Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that such Agent shall not be required to take any action that, in its role as Agentopinion or the opinion of its counsel, may expose such Agent to liability or that is contrary to any Loan Document or applicable law, including counsel fees and compensation for the avoidance of agents and employees paid for services rendered on behalf doubt any action that may be in violation of the Lendersautomatic stay under any Debtor Relief Law or that may effect a forfeiture, which shall not have been reimbursed by the Borrowers modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (ic) except as expressly set forth in the Loan Documents, no Agent shall have any duty to indemnify disclose, and hold harmless each of no Agent shall be liable for the Agents and failure to disclose, any information relating to the Company or 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 Subsidiaries that is communicated 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 obtained by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such institution serving as Agent or any of its directorsAffiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, officers, employees or agents. Each Lender agrees that any allocation made as such Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence, bad faith or willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by a Borrower, and no Agent shall 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 Agents contents of expenses any certificate, report or other amounts referred to document delivered hereunder or thereunder or in this paragraph between this Agreement and connection herewith or therewith, (iii) the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it hasperformance or observance of any of the covenants, independently and without reliance upon agreements or other terms or conditions set forth herein or therein or the Agents occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other Lender and based on 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 such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this AgreementAgent. Each 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, sent or otherwise authenticated by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and in good faith 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 also acknowledges or an Issuing Bank, each Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless such Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. Each Agent may consult with legal counsel (who may be counsel for any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it willin accordance with the advice of any such counsel, independently accountants or experts. Each Agent may perform any and without reliance upon all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each 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 this Article shall apply to any such sub-agent and to the Agents 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. In taking any discretionary action hereunder, or in determining whether any provision hereof is applicable to any event, transaction or circumstance, the Administrative Agent may, in its discretion, but shall not be required (unless required by any other Lender and based on express provision hereof) to, communicate such documents and information as it shall from time proposed action or determination to time deem appropriate, continue the Lenders prior to make its own decisions in taking or making the same, and shall be entitled (subject to any otherwise applicable requirement of Section 10.02(b)), in the absence of any contrary communication received from any Lender within a reasonable period of time specified in such communication from the Administrative Agent, to assume that such proposed action or determination is satisfactory to such Lender. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Company shall have the right, with the consent of the Required Lenders (not taking action under to be unreasonably withheld or based upon delayed), to appoint a successor; provided, that if a Default has occurred and is continuing, the Required Lenders, and not the Company, shall have the right, in consultation with the Company, to appoint such successor. If no successor shall have been so appointed by the Company (or, if applicable, 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York or Toronto or London, as applicable, or an Affiliate of 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 the Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Agent’s resignation hereunder, the provisions of this Agreement Article and Section 10.03 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 related agreement or any document furnished hereunder or thereunderof them while it was acting as Agent.
Appears in 2 contracts
Samples: Credit Agreement (Molson Coors Brewing Co), Credit Agreement (Molson Coors Brewing Co)
The Agents. In order to expedite Each Lender hereby irrevocably designates and appoints the transactions contemplated by Agents as the agents of such Person under this AgreementAgreement and the other Loan Documents, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF each such Person irrevocably authorizes each Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents in such capacity, to take such actions action on its behalf under the provisions of such Lender or holder this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are specifically expressly delegated to the Agents such Agent by the terms of this Agreement and provisions hereofthe other Loan Documents, together with such actions and other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, no Agent shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Person, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against any Agent. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by or on behalf of Borrower or any other Loan Party pursuant to this Agreement as received by such Agent. None of its directors, officers, employees or agents the Agents nor any of their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from 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 Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or such other proportion of the Lenders as may be expressly required hereby) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual 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. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it 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. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required LendersRequisite Lenders (or such other proportion of the Lenders as may be expressly required hereby). The Collateral Agent hereby agrees that it holds and will hold all of its right, title and interest in, to and under the Security Documents and the Collateral granted to the Collateral Agent thereunder whether now existing or hereafter arising (all such right, title and interest being hereinafter referred to as the “Collateral Estate”) under and subject to the conditions set forth in this Agreement; and the Collateral Agent further agrees that it will hold such Collateral Estate for the benefit of the Secured Parties, for the enforcement of the payment of all Secured Obligations (subject to the limitations and priorities set forth herein and in the respective Security Documents) and as security for the performance of and compliance with the covenants and conditions of this Agreement and each of the Security Documents. All of the powers, remedies and rights of the Collateral Agent as set forth in this Agreement may be exercised by the Collateral Agent in respect of any Security Document as though set forth in full therein and all of the powers, remedies and rights of the Collateral Agent as set forth in any Security Document may be exercised from time to time as herein and therein provided. Subject to the appointment and acceptance of a successor Agent as provided belowbelow and subject to the next succeeding paragraph with respect to the Collateral Agent, either any Agent may resign at any time by notifying the Lenders and the BorrowersBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right to appoint a successor Agent acceptable successor, subject (so long as no Default or Event of Default is continuing) to the BorrowersBorrower’s approval (not to be unreasonably withheld or delayed). If no successor shall have been so appointed by the Required Requisite Lenders and approved by Borrower 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 AgentAgent which shall be a bank or financial institution with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bankbank or financial institution. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, such successor With respect shall succeed to and become vested with all the Loans made by it rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, each the provisions of the Agents, this Section 8.01 and Section 9.05 shall continue in effect for its individual capacity and not as an 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 each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage benefit in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, 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) respect 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that while it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information was acting 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 Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunderan Agent.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Emdeon Inc.), Second Lien Credit Agreement (Emdeon Inc.)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent or 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 Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents 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. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents 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. The Lenders hereby acknowledge that the Agents shall be under no 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. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a 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, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an 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 each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A B Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunder.
Appears in 2 contracts
Samples: 364 Day Competitive Advance and Revolving Credit Facility Agreement (Tu Acquisitions PLC), 364 Day Competitive Advance and Revolving Credit Facility Agreement (Texas Utilities Co /Tx/)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes the Agents such Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent is hereby expressly authorized any required powers of attorney to execute and enforce any Collateral Document governed by the Lenders laws of such jurisdiction on such Lender’s behalf. Each of the banks serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the CAF same as though it were not an Agent, without hereby and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documents. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting any implied authoritythe generality of the foregoing, (a) the Agents shall not be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, and (c) except as expressly set forth in the CAF Agent all payments of principal of Loan Documents, the Agents shall not have any duty to disclose, and interest on shall not be liable for the Loans and all other amounts due failure to disclose, any information relating to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent Borrower or any of its directors, officers, employees Subsidiaries that is communicated to or agents obtained by the banks serving as Agents or any of their respective Affiliates in any capacity. No Agent shall be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for 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) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its or his or her own gross negligence or willful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, or and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewithwith any Loan Document, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in any Loan Document, covenants (iv) the validity, enforceability, effectiveness or agreements contained genuineness of any Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in this Agreement. The Agents shall not Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be responsible delivered to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lendersapplicable Agent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithPerson. Each of the Agents also may execute rely upon any statement made to it orally or by telephone and all duties hereunder believed by or through agents or employees it to be made by the proper Person, and shall be entitled to rely upon the advice of not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each of the Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The Lenders hereby acknowledge that exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it each Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication of the credit facilities provided for herein as well as activities as an Agent. Subject to the appointment and acceptance of a successor Agent as provided belowin this paragraph, either Agent may resign at any time by notifying the Lenders and the BorrowersBorrower. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right right, in consultation with the Borrower, to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as an Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Agent, in its individual capacity and not as an the retiring Agent shall have be discharged from its duties and obligations under the same rights and powers as any other Lender and may exercise Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as though it were not an those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After such Agent, and each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated’s resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 8.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties 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 respect 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 actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any Loan Document, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 2 contracts
Samples: Amendment and Restatement Agreement (Limited Brands Inc), Amendment and Restatement Agreement (Limited Brands Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Agent on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrowers pursuant to this Agreement as received by the Administrative Agent. No Agent or 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 Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents 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. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents 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. The Lenders hereby acknowledge that neither of the Agents shall be under no 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. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a 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, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, 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. After any 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 Agent. With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an 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 each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (iii) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A B Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunder. Neither Bank of America, N.A. nor Citibank, N.A. shall, by virtue of its designation as "Co-Syndication Agent", nor shall The Bank of New York, by virtue of its designation as "Documentation Agent", have any duties, liabilities, obligations or responsibilities under this Agreement other than as a Lender hereunder.
Appears in 2 contracts
Samples: 364 Day Competitive Advance and Revolving Credit Facility Agreement (Txu Electric Co), 364 Day Second Amended and Restated Competitive Advance and Revolving Credit Facility Agreement (Txu Electric Co)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank the Persons named in the heading of Texas, National Association is this Agreement are hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Canadian Administrative Agent on behalf of the LendersLenders and the Issuing Banks. Each of the Lenders Lenders, each assignee of any Lender and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee or Issuing Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is and, to the extent expressly provided herein, the Canadian Administrative Agent are hereby expressly authorized by the Lenders and the CAF AgentIssuing Banks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Banks all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent Issuing Banks hereunder, and promptly to distribute to each Lender and the CAF Agent or Issuing Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, the Administrative Agent is hereby expressly authorized to release any Subsidiary Guarantor from its obligations under the Subsidiary Guarantee Agreement in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person other than the Company or an Affiliate of the Company in a transaction not prohibited by this Agreement. With respect to the Loans made by it hereunder, each 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 the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that such Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances provided in Section 10.02) and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its directors, officers, employees or agents Affiliates in any capacity. No Agent shall be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its or his or her own gross negligence negligence, bad faith or willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by a Borrower, or and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein 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 herewithherewith or therewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth herein or therein, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Each Agent also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and in good faith believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for any Borrower), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The Lenders hereby acknowledge that exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take 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. In taking any discretionary action permitted hereunder, or in determining whether any provision hereof is applicable to any event, transaction or circumstance, the Administrative Agent may, in its discretion, but shall not be taken required (unless required by it pursuant any other express provision hereof) to, communicate such proposed action or determination to the provisions of this Agreement unless it Lenders prior to taking or making the same, and shall be requested entitled (subject to any otherwise applicable requirement of Section 10.02(b)), in writing the absence of any contrary communication received from any Lender within a reasonable period of time specified in such communication from the Administrative Agent, to do so by the Required Lendersassume that such proposed action or determination is satisfactory to such Lender. Subject to the appointment and acceptance of a successor Agent as provided belowin this paragraph, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowersCompany. Upon any such resignation, the Required Lenders Company shall have the right right, with the consent of the Required Lenders (not to be unreasonably withheld or delayed), to appoint a successor Agent acceptable successor; provided, that if a Default has occurred and is continuing, the Required Lenders, and not the Company, shall have the right, in consultation with the Company, to the Borrowersappoint such 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 LendersLenders and the Issuing Banks, appoint a successor AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York or Toronto or London, as applicable, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an retiring Agent, and each of the Agents retiring Agent shall be discharged from its duties and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with obligations hereunder. After the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated's resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 10.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties 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 respect 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 actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. It is agreed that the Syndication Agent shall, in its capacity as such, have no duties or responsibilities under this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Molson Coors Brewing Co), Credit Agreement (Molson Coors Brewing Co)
The Agents. In order to expedite the transactions contemplated by this Agreement, The Chase Manhattan Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the Lenders. Each of the Lenders and each assignee of any such Lender, hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to any of the Borrowers of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrowers pursuant to this Agreement as received by such Agent. Neither Agent or nor any of its directors, officers, employees or agents Related Parties shall be liable to the Lenders as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful 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 Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents 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. No Neither any Agent or nor any of its directors, officers, employees or agents Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it 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. The Lenders hereby acknowledge that the Agents neither Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. 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 LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be 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 any such bank. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, 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. After an Agent’s resignation hereunder, the provisions of this Article and Section 10.05 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 an Agent. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an 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 each of the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers CCSC or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents either 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 Agents either 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 or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Each Lender hereby authorizes the Administrative Agent to enter into the Intercreditor Agreement on behalf of such Lender and to exercise its rights and perform its obligations thereunder.
Appears in 2 contracts
Samples: Credit Agreement (Crown Cork & Seal Co Inc), Credit Agreement (Crown Cork & Seal Co Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank the Persons named in the heading of Texas, National Association is this Agreement are hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, London Agent on behalf of the LendersLenders and the Issuing Bank. Each of the Lenders Lenders, each assignee of any Lender and the Issuing Bank hereby irrevocably authorizes the Agents to take such actions on their behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is Agents are hereby expressly authorized by the Lenders and the CAF AgentIssuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Bank all payments of principal of and interest on the Loans and all other amounts due to the Lenders and or the CAF Agent Issuing Bank hereunder, and promptly to distribute to each Lender and or the CAF Agent Issuing Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Company of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. With respect to the Loans made by it hereunder, each 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 the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that such Agent is required to exercise upon receipt of notice 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 11.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its directors, officers, employees or agents Affiliates in any capacity. No Agent shall be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 11.02) or in the absence of its or his or her own gross negligence or willful wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by a Borrower, or and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein 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 herewithherewith or therewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth herein or therein, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Each Agent also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for any Borrower), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The Lenders hereby acknowledge that exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it each Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication 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 belowin this paragraph, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersCompany. Upon any such resignation, the Required Lenders shall have the right right, in consultation with the Company, to appoint a successor Agent acceptable to the Borrowerssuccessor. 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 LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an retiring Agent, and each of the Agents retiring Agent shall be discharged from its duties and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with obligations hereunder. After the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated's resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 11.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties 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 respect 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 actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Each Lender hereby acknowledges that each institution named on the cover page of this Agreement as Co-Syndication Agent has no duties or responsibilities hereunder other than, in the case of a Co-Syndication Agent that is a Lender, in its capacity as a Lender.
Appears in 2 contracts
Samples: Five Year Credit Agreement (Waters Corp /De/), Credit Agreement (Waters Corp /De/)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association JPMCB is hereby appointed to act as Administrative Agent Agent, and Chase JPMEL is hereby appointed to act as CAF London Agent, on behalf of the LendersLenders and each Issuing Bank. Each of the Lenders Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is and, to the extent expressly provided herein, the London Agent are hereby expressly authorized by the Lenders and the CAF Agenteach Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Banks all payments of principal of and interest on the Loans Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent or Issuing Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each 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 the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice 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 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its directors, officers, employees or agents Affiliates in any capacity. No Agent shall be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its or his or her own gross negligence or willful wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lender, or and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein 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 herewithherewith or therewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth herein or therein, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Each Agent also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The Lenders hereby acknowledge that exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it each Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided belowin this paragraph, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowersCompany. Upon any such resignation, the Required Lenders shall have the right right, in consultation with the Company, to appoint a successor Agent acceptable to the Borrowerssuccessor. 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 LendersLenders and the Issuing Banks, appoint a successor AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an retiring Agent, and each of the Agents retiring Agent shall be discharged from its duties and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with obligations hereunder. After the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated's resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 10.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties 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 respect 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 actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
Appears in 2 contracts
Samples: Revolving Credit Facility Agreement (Albany International Corp /De/), Revolving Credit Facility Agreement (Albany International Corp /De/)
The Agents. In order to expedite Each Lender hereby irrevocably designates and appoints the transactions contemplated by Agents as the agents of such Person under this AgreementAgreement and the other Loan Documents, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF each such Person irrevocably authorizes each Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents in such capacity, to take such actions action on its behalf under the provisions of such Lender or holder this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are specifically expressly delegated to the Agents such Agent by the terms of this Agreement and provisions hereofthe other Loan Documents, together with such actions and other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, no Agent shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Person, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against any Agent. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by or on behalf of Borrower or any other Loan Party pursuant to this Agreement as received by such Agent. None of its directors, officers, employees or agents the Agents nor any of their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from 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 Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or such other proportion of the Lenders as may be expressly required hereby) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual 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. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it 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. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required LendersRequisite Lenders (or such other proportion of the Lenders as may be expressly required hereby). The Collateral Agent hereby agrees that it holds and will hold all of its right, title and interest in, to and under the Security Documents and the Collateral granted to the Collateral Agent thereunder whether now existing or hereafter arising (all such right, title and interest being hereinafter referred to as the “Collateral Estate”) under and subject to the conditions set forth in this Agreement; and the Collateral Agent further agrees that it will hold such Collateral Estate for the benefit of the Secured Parties, for the enforcement of the payment of all Secured Obligations (subject to the limitations and priorities set forth herein and in the respective Security Documents) and as security for the performance of and compliance with the covenants and conditions of this Agreement and each of the Security Documents. All of the powers, remedies and rights of the Collateral Agent as set forth in this Agreement may be exercised by the Collateral Agent in respect of any Security Document as though set forth in full therein and all of the powers, remedies and rights of the Collateral Agent as set forth in any Security Document may be exercised from time to time as herein and therein provided. Subject to the appointment and acceptance of a successor Agent as provided belowbelow and subject to the next succeeding paragraph with respect to the Collateral Agent, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right to appoint a successor Agent acceptable successor, subject (so long as no Default or Event of Default is continuing) to the BorrowersBorrower’s approval (not to be unreasonably withheld or delayed). If no successor shall have been so appointed by the Required Requisite Lenders and approved by Borrower 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 LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank or financial institution with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bankbank or financial institution. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, 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. After an Agent’s resignation hereunder, the provisions of this Section 8.01 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 an Agent. The Collateral Agent may resign upon 30 days’ notice to the Lenders and Borrower. If the Collateral Agent shall resign as the Collateral Agent under this Agreement and the other Loan Documents, then the Requisite Lenders shall appoint from among the Lenders a successor agent for the Lenders, whereupon such successor agent shall succeed to the rights, powers and duties of the Collateral Agent, and the term “Collateral Agent” means such successor agent effective upon such appointment and approval, and such former Collateral Agent’s rights, powers and duties as the Collateral Agent shall be terminated, without any other or further act or deed on the part of such former Collateral Agent or any of the parties to this Agreement or any holders of the Loans. If no successor agent has accepted appointment as the Collateral Agent by the date that is 30 days following a retiring Collateral Agent’s notice of resignation, the retiring Collateral Agent shall, in consultation with Borrower, appoint a successor Collateral Agent (which successor agent shall be a financial institution of nationally-recognized standing that, in the ordinary course of business, performs functions equivalent to those of the Collateral Agent hereunder), and the retiring Collateral Agent’s resignation shall become effective upon such appointment. After any retiring Collateral Agent’s resignation as the Collateral Agent, the provisions of this Section 8.01 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Collateral Agent under this Agreement and the other Loan Documents. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an 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 each of the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Holdco, Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary, each Lender also acknowledges that the Lien and security interest granted to the Collateral Agent pursuant to the Security Documents and the exercise of any right or remedy by the Collateral Agent thereunder are subject to the provisions of the Intercreditor Agreement. In the event of any conflict between the terms of the Intercreditor Agreement and the Security Documents, the terms of the Intercreditor Agreement shall govern and control. The Collateral Agent is authorized to execute and deliver the Intercreditor Agreement and each Lender by making or purchasing an interest in any Loan at any time shall be deemed to have agreed to be bound by the terms and conditions of such agreement. The Lenders and the Issuing Bank irrevocably authorize and instruct the Administrative Agent and the Collateral Agent (and the Administrative Agent and the Collateral Agent are authorized to and hereby agree):
(a) to release any Lien granted to or held by the Collateral Agent under any Loan Document on any property and to return any Pledged Collateral (i) upon termination or expiration of the Commitments and payment in full of all Obligations (other than contingent indemnification obligations that are not then due and payable) and the expiration or termination of all Letters of Credit (other than Letters of Credit which have been collateralized in a manner set forth in Section 2.06(j)), (ii) that is sold or to be sold as part of or in connection with any sale or disposition permitted hereunder and under the Loan Documents, to the extent that the Lien of the Second Lien Secured Parties on such property is released on the same terms, (iii) subject to Section 9.08, if approved, authorized or ratified in writing by the Requisite Lenders or (iv) owned by any Subsidiary Loan Party upon the consummation of any transaction permitted under this Agreement as a result of which such Subsidiary Loan Party ceases to be a Subsidiary of the Borrower or is designated an Unrestricted Subsidiary pursuant to Section 5.16; and
(b) to release any Guarantor from its obligations under the Guarantee Agreement if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder. Notwithstanding anything to the contrary in this Agreement, neither the Lead Arranger nor the Syndication Agent, in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document. In the event that Citibank, N.A. or any of its Affiliates shall be or become an indenture trustee under the Trust Indenture Act of 1939 (as amended, the “Trust Indenture Act”) in respect of any securities issued or guaranteed by any Loan Party, the parties hereto acknowledge and agree that any payment or property received in satisfaction of or in respect of any Obligation of such Loan Party hereunder or under any other Loan Document by or on behalf of Citibank, N.A. in its capacity as the Administrative Agent or the Collateral Agent for the benefit of any Secured Party under any Loan Document (other than Citibank N.A. or an Affiliate of Citibank, N.A.) and which is applied in accordance with the Loan Documents shall be deemed to be exempt from the requirements of Section 311 of the Trust Indenture Act pursuant to Section 311(b)(3) of the Trust Indenture Act.
Appears in 2 contracts
Samples: First Lien Credit Agreement (Emdeon Inc.), First Lien Credit Agreement (Emdeon Inc.)
The Agents. In order to expedite Each Lender hereby appoints and authorizes (a) the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents to take such actions action as agent on its behalf of such Lender or holder and to exercise such powers and discretion under this Agreement as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions powers and discretion as are reasonably incidental thereto, and (b) the Documentation Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Documentation Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto. As to any matters not expressly provided for by this Agreement (including, without limitation, enforcement or collection of the Notes), the Administrative 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 Required Lenders, and such instructions shall be binding upon all Lenders and all holders of Notes; provided, however, that the Administrative Agent shall not be required to take any action that exposes the Administrative Agent to personal liability or that is contrary to this Agreement or applicable law. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF Agent, without hereby limiting any implied authority, (a) agrees to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute give to each Lender and the CAF Agent its proper share prompt notice of each payment so received; (a) notice given to give notice on behalf of each of it by the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent Borrower or any of its Subsidiaries pursuant to the terms of this Agreement. . Neither the Administrative Agent or the Documentation Agent nor any of its respective directors, officers, agents or employees or agents shall be liable as such for any action taken or omitted to be taken by any of it or them under or in connection with this Agreement, except for its or his or her their own gross negligence or willful misconduct. Without limitation of the generality of the foregoing, or be responsible for any statement, warranty or representation herein or the contents Administrative Agent and the Documentation Agent: (i) may treat the payee of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan Note as the holder thereof until the Administrative Agent receives and accepts an Assignment and Acceptance entered into by the Lender that is the payee of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderNote, given as assignor, and an Eligible Assignee, as assignee, as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance Section 8.07; (ii) may consult 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. Each of the Agents 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. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents 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 (including counsel for the Borrower), independent public accountants and other experts selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered omitted to be taken in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents , accountants or experts; (iii) make no warranty or representation to any Lender and shall not be under no responsible to any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement; (iv) shall not have any duty to take any discretionary action permitted ascertain or to be taken by it pursuant inquire as to the provisions performance or observance of any of the terms, covenants or conditions of this Agreement unless it shall be requested in writing to do so by on the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a 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 part of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 Borrower or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an 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 each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directorsSubsidiaries or to inspect the property (including the books and records) of the Borrower or any of its Subsidiaries; (v) shall not be responsible to any Lender for the due execution, officerslegality, employees validity, enforceability, genuineness, sufficiency 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 value of this Agreement or any action taken other instrument or omitted document furnished pursuant hereto; and (vi) shall incur no liability under or in respect of this Agreement by acting upon any notice, consent, certificate or other instrument or writing (which may be by telecopier, telegram or telex) believed by it under this Agreement to the extent the same shall not have been reimbursed be genuine and signed or sent by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses proper party or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunderparties.
Appears in 1 contract
Samples: Credit Agreement (United Parcel Service of America Inc)
The Agents. In order to expedite (a) Each Bank hereby irrevocably appoints and authorizes the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Collateral Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents each Disposition Agent to take such actions action as agent on its behalf of such Lender or holder and to exercise such powers under this Agreement as are specifically delegated to the Collateral Agent and the Disposition Agents by the terms and provisions hereof, together with all such actions and powers as are reasonably incidental thereto. The Administrative Collateral Agent is hereby expressly authorized by may also determine purely administrative matters without consulting the Lenders and the CAF Agent, without hereby limiting any implied authority, Banks.
(ab) to receive on behalf The obligations of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent or 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 Borrowers of any of the terms, conditions, covenants or agreements contained Agents hereunder are only those expressly set forth in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. .
(c) The Agents may deem consult with legal counsel, independent public accountants and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents 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. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents 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 experts selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered omitted to be taken by it in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents , accountants or experts.
(d) Neither any Agent nor any of its directors, officers, agents or employees shall be under no duty to take liable for any discretionary action permitted to be taken or not taken by it pursuant in connection with this Agreement (1) with the written consent or at the written request of any Bank or (2) in the absence of its own gross negligence or willful misconduct. The Agents shall not be deemed to have knowledge of any Event of Default or Termination Event unless and until notice describing such Event of Default or Termination Event is given to the Agents by any Pledgor or any Initial Bank. No Agent shall incur any liability by acting in reliance upon any notice, consent, certificate, statement or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed by Authorized Officers of the proper party or parties.
(e) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent, bailee, clearing corporation or securities intermediary or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if the Collateral is accorded treatment substantially equal to that which it accords its own property, and shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with this parenthetical phrase).
(f) Each Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Security Document by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Agreement unless it Article shall be requested in writing apply to do so by the Required Lenders. Subject any such sub-agent and to the appointment Related Parties of the Agents and acceptance any such sub-agent.
(g) Any corporation or association into which Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of the Initial Banks, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided belowabove, either the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
(h) The Collateral Agent may resign at any time by notifying give notice of its resignation to the Lenders Banks and the BorrowersPledgors. Upon receipt of any such notice of resignation, the Required Lenders Initial Banks shall have the right right, in consultation with the Pledgors, to appoint a successor Agent acceptable to successor, which shall be a bank with an office in the BorrowersUnited States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders Initial Banks and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, may on behalf of the Lenders, Banks appoint a successor AgentCollateral Agent meeting the qualifications set forth above; provided that if the Collateral Agent shall notify the Pledgors and the Banks that no qualifying Person has accepted such appointment, having a combined capital then such resignation shall nonetheless become effective in accordance with such notice and surplus of at least $500,000,000 or an Affiliate (1) the retiring Collateral Agent shall be discharged from its duties and obligations hereunder and under the other Security Documents (except that in the case of any collateral security held by the Collateral Agent on behalf of the Banks under any of the Security Documents, the retiring Agent shall continue to hold such bankcollateral security until such time as a successor Collateral Agent is appointed) and (2) all payments, communications and determinations provided to be made by, to or through the Collateral Agent shall instead be made by or to the Banks directly, until such time as the Banks appoint a successor Collateral Agent as provided for above in this Section. Upon the acceptance of any a successor’s appointment as Collateral Agent hereunder by a successor bankhereunder, such successor With respect shall succeed to the Loans made by it hereunder, each and become vested with all of the Agentsrights, in its individual capacity powers, privileges and not as an Agent shall have duties of the same rights and powers as any other Lender and may exercise the same as though it were not an retiring (or retired) Collateral Agent, and each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount retiring Collateral Agent shall be discharged from all of its pro rata share duties and obligations hereunder or under the other Security Documents (based on its Commitment if not already discharged therefrom as provided above in this Section). After the retiring Collateral Agent’s resignation hereunder or, if and under the Commitments shall have been terminatedother Security Documents, the amount provisions of its outstanding Loans) of any expenses incurred this Section shall continue in effect for the benefit of the Lenders in its role as such retiring Collateral Agent, including counsel fees and compensation of its sub agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Affiliates 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 respect 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 actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by them while the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information retiring Collateral Agent was acting 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 Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunderCollateral Agent.
Appears in 1 contract
Samples: Pledge Agreement
The Agents. In order to expedite the transactions contemplated by this AgreementSECTION 8.01. The Agents. Citicorp North America, Chase Bank of Texas, National Association Inc. is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the LendersLenders and Citicorp North America, Inc. accepts such appointments. Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes the Agents Administrative Agent and the Collateral Agent to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and to promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent it has actual knowledge acquired in connection No Agent or with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by Borrower pursuant to this Agreement as received by it. None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from 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 Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual 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. No Agent or any of its directors, officers, employees or agents Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it 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. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right to appoint a successor Agent which shall be 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 any such bank (or any other bank reasonably acceptable to Borrower and the BorrowersRequisite Lenders). If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be 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 any such bank. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, 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. After an Agent's resignation hereunder, the provisions of this Article 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 an Agent. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an 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 each of the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. The Lenders and the Issuing Bank irrevocably authorize the Administrative Agent and the Collateral Agent (and the Administrative Agent and the Collateral Agent hereby agree):
(a) to release any Lien on any property granted to or held by the Collateral Agent under any Loan Document (i) upon termination or expiration of the Commitments and payment in full of all Obligations (other than contingent indemnification obligations that are not then due and payable) and the expiration or termination of all Letters of Credit (other than Letters of Credit which have been collateralized in a manner set forth in Section 2.06(j)), (ii) that is sold or to be sold as part of or in connection with any sale or disposition permitted hereunder and under the Loan Documents, or (iii) subject to Section 9.08, if approved, authorized or ratified in writing by the Requisite Lenders; and
(b) to release any Guarantor from its obligations under the Guarantee Agreement if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder. Notwithstanding anything to the contrary in this Agreement, none of CGMI, as Lead Arranger, the Lead Arrangers, the Joint Bookrunners, the Syndication Agent nor the Documentation Agent in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably appoints the Agents as its agents and authorizes the Agents to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms hereof and provisions hereofof the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby bank or banks serving as the Agents hereunder shall have the same rights and powers in their capacity as Lenders as any other Lender and may exercise the same as though they were not Agents, and such bank or banks and their 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 they were not Agents hereunder. The Agents shall not have any duties or obligations except those expressly authorized by set forth herein. Without limiting the Lenders and generality of the CAF Agent, without hereby limiting any implied authority, foregoing (a) the Agents shall not be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Lenders Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the CAF Agent all payments of principal of Agents are required to exercise in writing by the Required Lenders, and interest on (c) except as expressly set forth herein, the Loans Agents shall not have any duty to disclose, and all other amounts due shall not be liable for the failure to disclose, any information communicated to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders Agents by or relating to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent Borrower or any of its directors, officers, employees or agents Subsidiary. The Agents shall not be liable as such for any action taken or omitted not taken by any them with the consent or at the request of them except for its the Required Lenders or his the Lenders, as the case may be, or her in the absence of their own gross negligence or willful misconduct. In addition, the Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agents by the Borrower or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth herein, covenants (iv) the validity, enforceability, effectiveness or agreements contained genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in this AgreementArticle IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Agents. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document other writing believed by it in good faith them to be genuine and correct and to have been signed or sent by the proper person Person. The Agents also may rely upon any statement made to them orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by them to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the The Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it them with respect to all matters arising hereunder reasonable care, and shall not be liable for any action taken or suffered in good faith not taken by it them in accordance with the advice of any such counsel, accountants or experts. The Lenders hereby acknowledge that Agents may perform any and all their duties and exercise their rights and powers by or through any one or more sub-agents appointed by the Agents. The Agents and any such sub-agent may perform any and all their duties and exercise their rights and powers through their respective Affiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Affiliates of the Agents shall be under no duty to take and 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 Lenderssuch sub-agent. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the BorrowersBorrower. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to with the BorrowersBorrower’s written consent (which shall not be unreasonably withheld or delayed and shall not be required from the Borrower 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, with the Borrower’s written consent (which shall not be unreasonably withheld or delayed and shall not be required if an Event of Default has occurred and is continuing), appoint a successor AgentAgent which shall be a bank or an Affiliate thereof, having in each case with a combined capital and surplus net worth of at least $500,000,000 or an Affiliate of any such bank1,000,000,000. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an retiring Agent, and each of the Agents retiring Agent shall be discharged from its duties and their 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 obligations hereunder. After an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated’s resignation hereunder, the amount provisions of this Article and Section 9.03 shall continue in effect for its outstanding Loans) benefit in respect 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposeswhile it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding any other provision contained herein, the Syndication Agent shall, in its capacity as such, have no responsibilities under this Agreement or the other Loan Documents.
Appears in 1 contract
Samples: Revolving Credit Agreement (Service Corporation International)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank the Persons named in the heading of Texas, National Association is this Agreement are hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, London Agent on behalf of the Lenders. Each of the Lenders Lenders, each assignee of any Lender hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is and, to the extent expressly provided herein, the London Agent are hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, the Administrative Agent is hereby expressly authorized to release any Subsidiary Guarantor from its obligations under the Subsidiary Guarantee Agreement in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person other than the Company or an Affiliate of the Company in a transaction not prohibited by Section 6.04. With respect to the Loans made by it hereunder, each 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 the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that such Agent is required to exercise upon receipt of notice 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 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its directors, officers, employees or agents Affiliates in any capacity. No Agent shall be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its or his or her own gross negligence or willful wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by a Borrower (in which case such Agent shall give written notice to each other Lender), or and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein 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 herewithherewith or therewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth herein or therein, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Each Agent also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and in good faith believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for any Borrower), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The Lenders hereby acknowledge that exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take 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. In taking any discretionary action permitted hereunder, or in determining whether any provision hereof is applicable to any event, transaction or circumstance, the Administrative Agent may, in its discretion, but shall not be taken required (unless required by it pursuant any other express provision hereof) to, communicate such proposed action or determination to the provisions of this Agreement unless it Lenders prior to taking or making the same, and shall be requested entitled (subject to any otherwise applicable requirement of Section 10.02(b)), in writing the absence of any contrary communication received from any Lender within a reasonable period of time specified in such communication from the Administrative Agent, to do so by the Required Lendersassume that such proposed action or determination is satisfactory to such Lender. Subject to the appointment and acceptance of a successor Agent as provided belowin this paragraph, either any Agent may resign at any time by notifying the Lenders and the BorrowersCompany. Upon any such resignation, the Required Lenders shall have the right right, with (so long as no Default has occurred and is continuing) the consent of the Company (not to be unreasonably withheld or delayed), to appoint a successor Agent acceptable to the Borrowerssuccessor. 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 AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York or London, as applicable, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an retiring Agent, and each the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the Agents benefit of such retiring Agent, its sub-agents and their Affiliates may accept deposits from, lend money respective Related Parties in respect of any actions taken or omitted to and generally engage in be taken by any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof them while it was acting as if it were not an Agent. Each Lender agrees (ia) to reimburse the Agents, 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 LoansLoans and available Commitments hereunder) of any expenses incurred for the benefit of the Lenders in its role as Agentby the Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which that shall not have been reimbursed by the Borrowers Company or any other Loan Party and (ib) to indemnify and hold harmless each of the Agents Agent and any of its directors, officers, employees or agentsRelated Parties, 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 that may be imposed on, incurred by or asserted against it in its capacity as Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or 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 BorrowersCompany or any other Loan Party; provided that no Lender shall be liable to an Agent or any Agent such other indemnified Person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting that are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful wilful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The institutions named as Syndication Agent and as Co- Documentation Agents 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 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably appoints the Administrative Agent and the Collateral Agent (for purposes of this Article, the Administrative Agent, the Collateral Agent and the Funding Agent are referred to collectively as the “Agents”) its agent and authorizes the Agents to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is Without limiting the generality of the foregoing, the Agents are hereby expressly authorized by to execute any and all documents (including releases) with respect to the Lenders Collateral and the CAF rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Collateral Documents. The bank serving as the Administrative Agent and/or the Collateral 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, without hereby and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party or other Affiliate thereof as if it were not an Agent hereunder. Neither Agent shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting any implied authoritythe generality of the foregoing, (a) neither Agent shall be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) neither Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that such Agent is instructed in writing to exercise by the Required Lenders (or such other number or percentage of the Lenders and as shall be necessary under the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereundercircumstances as provided in Section 9.08), and promptly (c) except as expressly set forth in the Loan Documents, neither Agent shall have any duty to distribute disclose, nor shall it be liable for the failure to each Lender and disclose, any information relating to Credit Party that is communicated to or obtained by the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the bank serving as Administrative Agent has actual knowledge acquired in connection No and/or Collateral Agent or any of its directors, officers, employees or agents Affiliates in any capacity. Neither Agent shall be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.08) or in the absence of its or his or her own gross negligence or willful misconduct. Neither Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by a Credit Party or a Lender, or and neither Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection herewiththerewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in any Loan Document, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Each Agent may also rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall by telephone and believed by it to have any responsibility to the Borrowers on account of the failure of or delay in performance or breach been made by the other Agent or proper person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. Each 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 Lenders hereby acknowledge that exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it each Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication 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 below, either Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the Borrowers. Upon any such resignation, the Required Lenders shall have the right right, subject, if no Event of Default shall have occurred and be continuing, to the consent of the Borrowers (not to be unreasonably withheld), to appoint a successor Agent acceptable to the Borrowerssuccessor. 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, subject, if no Event of Default shall have occurred and be continuing, to the consent of the Borrowers (not to be unreasonably withheld), on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Agent, in its individual capacity and not as an the retiring Agent shall have be discharged from its duties and obligations hereunder. The fees payable by the same rights and powers as any other Lender and may exercise Borrowers to a successor Agent shall be the same as though it were not those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an Agent, and each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated’s resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 9.05 shall continue in effect for the benefit of the Lenders in its role as such retiring Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties 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 respect 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 actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Thermadyne Holdings Corp /De)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Paying Agent on behalf of the Lenders and Chase is Chase, Credit Suisse First Boston and Goldman Sachs Credit Partners L.P. are hereby appointed to act as CAF Agent, ax Xxxxxisxxxxxve Agents on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents each Agent to take such actions on behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Paying Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Paying Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by the Paying Agent. It is understood that the Agent Parties shall not have any duties or obligations except those expressly set forth herein. Neither any Agent Party 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 Borrowers Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents No Agent Party shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents Each Agent Party may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it until, in the case of the Paying Agent, the Paying Agent shall have received notice from such Lender or, in the case of any other Agent Party, such Agent Party shall have received notice from the Paying Agent that it received such notice from such Lender, in each case, given as provided herein, of the transfer thereof. The Agents Each Agent Party shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent Party 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. No Neither any Agent or Party nor any of its directors, officers, employees or agents shall have any responsibility to the Borrowers Borrower on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents Agent Party 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. The Lenders hereby acknowledge that the Agents each Agent shall be under no 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. Subject to the appointment and acceptance of a successor Paying Agent as provided below, either any Agent may resign at any time by notifying the Lenders and the BorrowersBorrower. Upon any such resignationresignation of the Paying Agent, the Required Lenders shall have the right to appoint a successor Paying Agent acceptable to the BorrowersBorrower. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Paying Agent gives notice of its resignation, then the retiring Paying Agent may, on behalf of the Lenders, appoint a successor AgentPaying Agent which shall be 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 any such bank. Upon the acceptance of any appointment as a Paying Agent hereunder by a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Paying Agent and the retiring Paying Agent shall be discharged from its duties and obligations hereunder. After any 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 an Agent. With respect to the Loans made by it hereunder, each of the Agents, any Agent in its individual capacity and not as an 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 each of the Agents Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the AgentsPaying 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 Loanshereunder) of any expenses incurred for the benefit of the Lenders in its role as by such 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 Borrowers Borrower, and (iii) to indemnify and hold harmless each of the Agents Agent Party 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 an Agent Party 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 BorrowersBorrower; provided that no Lender shall be liable to any Agent Party for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent Party or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent Party 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 Agents any Agent Party 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 or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Competitive Advance and Revolving Credit Facility Agreement (At&t Corp)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase Agent, CMIL is hereby appointed to act as CAF London Agent, and such party as may be named pursuant to Section 9.16 is hereby appointed to act as Australian Agent, on behalf of the Lenders. Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative With respect to the Loans made by it hereunder, each Agent is hereby expressly authorized by in its individual capacity and not as Agent shall have the Lenders same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the CAF Agents and their Affiliates in their respective individual capacities may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent, without hereby . The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting any implied authoritythe generality of the foregoing, (a) no Agent shall be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that such 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 (c) except as expressly set forth in the CAF Loan Documents, no Agent all payments of principal of shall have any duty to disclose, and interest on no Agent shall be liable for the Loans and all other amounts due failure to disclose, any information relating to the Lenders and Company or any of its Subsidiaries that is communicated to or obtained by the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No institution serving as Agent or any of its directors, officers, employees or agents Affiliates in any capacity. No Agent shall be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the 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 or his or her own gross negligence or willful wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by a Borrower or a Lender, or and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with the Loan Documents, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth herein or therein, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder genuineness of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from Loan Documents or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein or in any other Loan Document, other than to confirm receipt of items expressly required to be delivered to such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Each Agent also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by it in good faith to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for any Borrower), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The Lenders hereby acknowledge that exculpatory provisions of the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to preceding paragraphs and the provisions of this Agreement unless it Section 9.03 shall be requested 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 writing to do so by connection with the Required Lenderssyndication 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 belowin this paragraph, either any Agent may resign at any time by notifying the Lenders and the BorrowersCompany. Upon any such resignation, the Required Lenders shall have the right right, in consultation with the Company, to appoint a successor Agent acceptable to the Borrowerssuccessor. 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 AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Agent, in its individual capacity and not as an the retiring Agent shall have be discharged from its duties and obligations hereunder. The fees payable by the same rights and powers as any other Lender and may exercise Company to a successor Agent shall be the same as though it were not an those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Agent, and each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated's resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 9.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties 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 respect 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 actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document or any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Co-Syndication Agents or Co-Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the Agents as its agents and authorizes the Agents to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by Any Person serving as an Agents hereunder shall have the Lenders same rights and powers in its capacity as a Lender as any other Lender and may exercise the CAF same as though it were not an Agent, without hereby and such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting any implied authoritythe generality of the foregoing, (a) the Agents shall not be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agents are required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth in the CAF Agent all payments of principal of Loan Documents, the Agents shall not have any duty to disclose, and interest on shall not be liable for the Loans and all other amounts due failure to disclose, any information relating to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent Company or any of its directors, officers, employees the Subsidiaries that is communicated to or agents obtained by them or any of their Affiliates in any capacity. The Agents shall not be liable as such for any action taken or omitted not taken by any them with the consent or at the request of them except for its the Required Lenders (or his such other number or her percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of their own gross negligence or willful wilful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lender, or and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection herewiththerewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in any Loan Document, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Each Agent also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The Lenders hereby acknowledge that exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it each Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication of the credit facilities provided for herein as well as activities Agent. Subject to the appointment and acceptance of a successor Agent as provided belowin this paragraph, either each Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowersCompany. Upon any such resignation, the Required Lenders shall have the right right, in consultation with the Company, to appoint a successor Agent acceptable to the Borrowerssuccessor. 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 LendersLenders and the Issuing Banks, appoint a successor AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Agent, in its individual capacity and not as an the retiring Agent shall have be discharged from its duties and obligations hereunder. The fees payable by the same rights and powers as any other Lender and may exercise Company to a successor Agent shall be the same as though it were not those payable to its predecessor unless otherwise agreed between the Company and such successor. After an Agent, and each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated's resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 9.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties 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 respect 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 actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents either 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 Agents either 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, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Credit Agreement (Expedia, Inc.)
The Agents. In order to expedite As used in this Section 10, the transactions contemplated by this Agreementterm “Agents” or “Agent” shall mean each of the Agents as well as the Administrative Agent, Chase Bank acting in such respective capacities. The rights and relationships of Texas, National Association is hereby appointed to act as Administrative each Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder and to exercise such powers as are specifically delegated Banks shall be subject to the Agents by the terms and provisions hereof, together with such actions and powers as are reasonably incidental theretoset forth in this Section 10. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice take such action on behalf of each of the Lenders Banks and to exercise all such powers as are hereunder and in related documents delegated to the Borrowers of any Event of Default of which Administrative Agent, together with such powers as are reasonably incident thereto, provided that no duties or responsibilities not expressly assumed herein or therein shall be implied to have been assumed by the Administrative Agent. The relationship between the Administrative Agent has actual knowledge acquired and each of the Banks is that of an independent contractor. The use of the term “Administrative Agent” is for convenience only and is used to describe, as a form of convention, the independent contractual relationship between the Administrative Agent and each of the Banks. Nothing contained in connection No this Agreement shall be construed to create an agency, trust or other fiduciary relationship between the Administrative Agent or and any of the Banks. The Administrative Agent may exercise its directors, officers, powers and execute its duties by or through employees or agents and shall be entitled to take, and to rely on, advice of counsel concerning all matters pertaining to its rights and duties under this Agreement. The Administrative Agent may utilize the services of such Persons as the Administrative Agent in its sole discretion may reasonably determine, and all reasonable fees and expenses of such Persons shall be paid by the Borrower. None of the Agents nor any of their respective shareholders, directors, officers or employees nor any other Person assisting them in their duties nor any agent or employee thereof, shall be liable as such for any waiver, consent or approval given or any action taken taken, or omitted to be taken, in good faith by any of it or them except for its or his or her own gross negligence or willful misconducthereunder, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required responsible for the consequences of any oversight or error of judgment whatsoever, except that each Agent or such other Person, as the case may be, may be liable for losses due to its willful misconduct or gross negligence. The Agents shall not be responsible for the execution or validity or enforceability of this Agreement or any instrument at any time constituting, or intended to constitute, collateral security for the Obligations, or for the value of any such collateral security or for the validity, enforceability or collectability of any such amounts owing with respect hereto, or for any recitals or statements, warranties or representations herein or made in any certificate or instrument hereafter furnished by or on behalf of the Borrower, or be bound to ascertain or inquire as to make any inquiry concerning the performance or observance by the Borrowers of any of the terms, conditions, covenants or agreements contained herein or in this Agreement. The Agents shall not be responsible any instrument at any time constituting, or intended to the Lenders constitute, collateral security for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents 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 personsObligations. No Agent shall be bound to ascertain whether any notice, consent, waiver or request delivered to it by the Borrower or any Bank or its assignee shall have been duly authorized or is true, accurate and complete. No Agent has made or now makes any representations or warranties, express or implied, nor does either Agent assume any liability to the Banks with respect to the creditworthiness or financial condition of the Borrower or any of its directorsSubsidiaries. Except for notices, officersreports and other documents and information expressly required to be furnished to the Banks by the Administrative Agent hereunder, employees or agents no Agent shall have any duty or responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or provide any Lender of Bank with any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents 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. The Lenders hereby acknowledge that the Agents shall be under no 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. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a 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, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an 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 each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary credit or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, 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 information concerning 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 Person 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 come into the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any 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 possession of such Agent or any of its directors, officers, employees or agentsaffiliates. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender Bank acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender Bank, and based on upon such information and 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 If in the opinion of the Administrative Agent the distribution of any amount received in its capacity as Administrative Agent hereunder might involve it willin a violation of law, independently and without reliance upon the Agents or any other Lender and based on it may refrain from making such documents and information as it shall from time to time deem appropriate, continue distribution until its right to make such 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 Administrative Agent is to be repaid, each Person to whom any such distribution shall have been made shall either repay to the Administrative Agent its own decisions proportionate share of the amount so adjudged to be repaid or shall pay over the same in taking such manner and to such Persons as shall be determined by such court. With respect to obligations of the Borrower hereunder, a payment to the Administrative Agent for the account of the Banks shall be deemed to be a payment to the Banks. The Banks agree, ratably in accordance with their respective Commitment Percentages, to indemnify and hold harmless the Administrative Agent and its affiliates from and against any and all claims, actions and suits (whether groundless or otherwise), losses, damages, costs, expenses (including any expenses for which the Administrative Agent and its affiliates has not taking action under been reimbursed by the Borrower as required by Section 11 hereof), and liabilities of every nature and character arising out of or based upon related to this Agreement or the transactions contemplated or evidenced hereby, or the Administrative Agent’s or its affiliates’ actions taken hereunder, except to the extent that any related agreement of the same shall be directly caused by the Administrative Agent’s or its affiliates’ willful misconduct or gross negligence. In their respective individual capacities, each of the Banks serving as an Agent shall have the same obligations and the same rights, powers and privileges with respect to their Commitments and the Loans made by them hereunder as they would have were they not also acting as Agents. None of the Agents, other than the Administrative Agent, shall have any document furnished hereunder right, power, obligation, liability, responsibility or thereunder.duty under this Agreement in such capacity, other than those applicable to all Banks as Banks. Without limiting any of the foregoing provisions of this Section 10, the Banks and each Agent hereby agree that the Administrative Agent shall not be obliged to make available to any Person any sum which the Administrative Agent is expecting to receive for the account of that Person until the Administrative Agent has determined that it has received that sum. The Administrative Agent may, however, disburse funds prior to determining that the sums which the Administrative Agent expects to receive have been finally and unconditionally paid to the Administrative Agent, if the Administrative Agent wishes to do so. If and to the extent that the Administrative Agent does disburse funds and it later becomes apparent that the Administrative Agent did not then receive a payment in an amount equal to the sum paid out, then any Person to whom the Administrative Agent made the funds available shall, on demand from the Administrative Agent:
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and Issuing Banks hereby irrevocably appoints the Agents as its agents and authorizes the Agents to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby Agents shall not have any duties or obligations except those expressly authorized by set forth in the Lenders and Loan Documents. Without limiting the CAF Agent, without hereby limiting any implied authoritygenerality of the foregoing, (a) the Agents shall not be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agents are required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth in the CAF Agent all payments of principal of Loan Documents, the Agents shall not have any duty to disclose, and interest on shall not be liable for the Loans and all other amounts due failure to disclose, any information relating to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent Borrower or any of its directors, officers, employees the Subsidiaries that is communicated to or agents obtained by them or any of their Affiliates in any capacity. The Agents shall not be liable as such for any action taken or omitted not taken by any them with the consent or at the request of them except for its the Required Lenders (or his such other number or her percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of their own gross negligence or willful wilful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, or and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein 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 herewithherewith or therewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in any Loan Document, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Each Agent also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through its respective Related Parties. The Lenders hereby acknowledge that exculpatory provisions of the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to preceding paragraphs and the provisions of this Agreement unless Section 9.03 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. Any Person serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it shall be requested were not an Agent, and such Person and its Affiliates may accept deposits from, lend money to and generally engage in writing to do so by any kind of business with the Required LendersBorrower or any Subsidiary or other Affiliate thereof as if it were not an Agent hereunder. Subject to the appointment and acceptance of a successor Agent as provided belowin this paragraph, either each Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowersBorrower. Upon any such resignation, the Required Lenders (in the case of a resignation by the Administrative Agent) or the Administrative Agent (in the case of a resignation by the London Agent) shall have the right right, with the Borrower’s approval (so long as no Event of Default has occurred and is continuing) to appoint a successor Agent acceptable to the Borrowerssuccessor. 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 LendersLenders and the Issuing Banks, appoint a successor AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Agent, in its individual capacity and not as an the retiring Agent shall have be discharged from its duties and obligations hereunder. The fees payable by the same rights and powers as any other Lender and may exercise Borrower to a successor Agent shall be the same as though it were not those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After an Agent, and each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated’s resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 9.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Agent, including counsel fees and compensation of its sub–agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties 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 respect 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 actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents either 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 Agents either 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, 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
Samples: Credit Agreement (Broadridge Financial Solutions, Inc.)
The Agents. In order to expedite the transactions contemplated by this Agreement, The Chase Manhattan Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) as provided in Article VII, to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as received by the Administrative Agent. Neither the Agents nor any of its their 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 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 Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement Agreement, or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the The Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it them in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or Neither the Agents nor any of its their directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent Lender or any a Borrower of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the The Agents may execute any and all duties hereunder and under the other Loan Documents by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it them with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it them in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it them pursuant to the provisions of this Agreement or any other Loan Document unless it they shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided below, either the Administrative Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. 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 AgentAdministrative Agent which shall be 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 affiliate of any such bank. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor bank, 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. After the Administrative Agent's resignation hereunder, the provisions of this Article and Section 11.05 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 Administrative Agent. With respect to the Loans made by it hereunder, each of the Agents, Agents in its their individual capacity and not as an Agent Agents shall have the same rights and powers as any other Lender and may exercise the same as though it they were not an Agentthe Agents, and each of the Agents and their Affiliates affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Holdings or any Subsidiary or other Affiliate thereof as if it they were not an Agentthe Agents. Each Lender agrees (ia) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder oroutstanding Term Loans, if Revolving Exposures and unusued Commitments at the Commitments shall have been terminated, the amount time of its outstanding Loanssuch demand) of any expenses incurred for the benefit of the Lenders in its role as Agentby the Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by one of the Borrowers and (ib) to indemnify and hold harmless each of the Agents and any of its their 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 them in their capacity as Agents 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 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 PROVIDED that no Lender shall be liable to any Agent the Agents for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful wilful misconduct of such Agent the Agents or any of its their directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriateapplicable, 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 Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriateapplicable, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association CSFB is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the LendersLenders and the Issuing Bank (for purposes of this Article VIII, the Administrative Agent and the Collateral Agent are referred to collectively as the "Agents"). Each of the Lenders Lenders, each assignee of any such Lender and the Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee or the Issuing Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Bank all payments of principal of and interest on the Loans Loans, all payments in respect of L/C Disbursements and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and or the CAF Agent Issuing Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company and PHI or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, the Agents are hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents and release the Security Interest in any Collateral, in the event that all the capital stock of the Guarantor, or such Collateral, shall be sold, transferred or otherwise disposed of to a person that is not an Affiliate of the Borrower in a transaction permitted by Section 6.05 hereof, and to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, in each case as contemplated by and in accordance with the provisions of this Agreement and the other Loan Documents. Neither the Agents nor any of their respective 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 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 Borrowers Borrower or any other Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents, instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents 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. No Agent or Neither the Agents nor any of its their respective directors, officers, employees or agents shall have any responsibility to the Borrowers Company or any other Loan Party on account of the failure of or delay in performance or breach by the other Agent or any Lender or the Issuing Bank of any of its obligations hereunder or to the other Agent or any Lender or the Issuing Bank on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent Issuing Bank or the Company or any Borrower other Loan Party of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled enti tled 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. The Lenders hereby acknowledge that the Agents no Agent shall be under no 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. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders and the BorrowersBorrower in writing. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. 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 AgentAgent which shall be 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 any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, 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. After the Agent's resignation hereunder, the provisions of this Article and Section 10.05 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. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an 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 each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Company or any Subsidiary of the Subsidiaries or other Affiliate thereof as if it were not an Agent. Each Lender agrees (ia) to reimburse the Agents, 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 LoansLoans and available commitments hereunder) of any expenses incurred for the benefit of the Lenders in its role as Agentby the Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which that shall not have been reimbursed by the Borrowers Borrower and (ib) to indemnify and hold harmless each of the Agents 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 that may be imposed on, incurred by or asserted against it in its capacity as Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or 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 BorrowersBorrower or any other Loan Party; provided that no Lender shall be liable to an Agent or any Agent such other indemnified person for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting that are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful wilful misconduct of such Agent or any of its directors, officers, employees or agents. Each Revolving Credit Lender agrees that any allocation made to reimburse each of the Issuing Bank and its directors, officers, employees and agents, in good faith by each case, to the Agents of expenses or other amounts referred same extent and subject to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding same limitations as provided above for all purposesthe Agents. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank the Persons named in the heading of Texas, National Association is this Agreement are hereby appointed to act as Administrative Agent, London Agent and Chase is hereby appointed to act as CAF Agent, Canadian Agent on behalf of the Lenders. Each of the Lenders and each assignee of any Lender hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is and, to the extent expressly provided herein, the other Agents are hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, and by the Borrowers with respect to clause (c) below, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Company of any Default or Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. With respect to the Loans made by it hereunder, each 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 the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any of the Borrowers or any of their Subsidiaries or other Affiliates thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that such Agent is required to exercise upon receipt of notice 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 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to any of the Borrowers or any of their Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its directors, officers, employees or agents Affiliates in any capacity. No Agent shall be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its or his or her own gross negligence or willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by a Borrower (in which case such Agent shall give written notice to each other Lender), or and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein 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 herewithherewith or therewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth herein or therein, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Each Agent also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for any Borrower), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The Lenders hereby acknowledge that exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it each Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication 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 belowin this paragraph, either any Agent may resign at any time by notifying the Lenders and the BorrowersCompany. Upon any such resignation, the Required Lenders shall have the right right, with the consent of the Company (except during the continuance of an Event of Default hereunder, when no consent shall be required), to appoint a successor Agent acceptable to the Borrowerssuccessor. 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 AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an retiring Agent, and each the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the Agents benefit of such retiring Agent, its sub-agents and their Affiliates may accept deposits from, lend money respective Related Parties in respect of any actions taken or omitted to and generally engage in be taken by any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof them while it was acting as if it were not an Agent. Each Lender agrees (ia) to reimburse the Agents, 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 LoansLoans and available Commitments hereunder) of any expenses incurred for the benefit of the Lenders in its role as Agentby the Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which that shall not have been reimbursed by the Borrowers Company or any other Borrower and (ib) to indemnify and hold harmless each of the Agents Agent and any of its directors, officers, employees or agentsRelated Parties, 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 that may be imposed on, incurred by or asserted against it in its capacity as Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or 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 BorrowersCompany or any other Borrower; provided that no Lender shall be liable to an Agent or any Agent such other indemnified Person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting that are determined to have resulted from the gross negligence or willful misconduct of such Agent Agent, and any of its Related Parties or any of its their respective directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. None of the Lenders identified on the facing page or signature pages of this Agreement or elsewhere herein as a “syndication agent” or “documentation agent” shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this AgreementSECTION 8.01. The Agents. Citicorp North America, Chase Bank of Texas, National Association Inc. is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the Lenders. Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to any of the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by such Agent. None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from 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 Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual 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. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it 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. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 500.0 million or an Affiliate of any such bank. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, 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. After an Agent's resignation hereunder, the provisions of this Article and Section 10.05 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 an Agent. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an 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 each of the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither CGMI and Harris, as Joint Lead Arrangers and Joint Bookrunners, nor Harris, as Xxxxxcation Agent, nor CIBC and Rabobank, as Co-Documentatxxx Xxents, in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 1 contract
Samples: Credit Agreement (Seminis Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the Agents as its agents and authorizes the Agents to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by Any Person serving as an Agents hereunder shall have the Lenders same rights and powers in its capacity as a Lender as any other Lender and may exercise the CAF same as though it were not an Agent, without hereby and such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting any implied authoritythe generality of the foregoing, (a) the Agents shall not be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agents are required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth in the CAF Agent all payments of principal of Loan Documents, the Agents shall not have any duty to disclose, and interest on shall not be liable for the Loans and all other amounts due failure to disclose, any information relating to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent Company or any of its directors, officers, employees the Subsidiaries that is communicated to or agents obtained by them or any of their Affiliates in any capacity. The Agents shall not be liable as such for any action taken or omitted not taken by any them with the consent or at the request of them except for its the Required Lenders (or his such other number or her percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of their own gross negligence or willful wilful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lender, or and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection herewiththerewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in any Loan Document, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Each Agent also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The Lenders hereby acknowledge that exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it each Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication of the credit facilities provided for herein as well as activities Agent. Subject to the appointment and acceptance of a successor Agent as provided belowin this paragraph, either each Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowersCompany. Upon any such resignation, the Required Lenders shall have the right right, in consultation with the Company, to appoint a successor Agent acceptable to the Borrowerssuccessor. 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 LendersLenders and the Issuing Banks, appoint a successor AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Agent, in its individual capacity and not as an the retiring Agent shall have be discharged from its duties and obligations hereunder. The fees payable by the same rights and powers as any other Lender and may exercise Company to a successor Agent shall be the same as though it were not those payable to its predecessor unless otherwise agreed between the Company and such successor. After an Agent, and each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated’s resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 9.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties 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 respect 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 actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents either 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 Agents either 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, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Credit Agreement (Expedia, Inc.)
The Agents. In order (a) For convenience of administration and to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association Chemical is hereby appointed to act as Administrative Agent, FTX Collateral Agent and FCX Collateral Agent for the Banks under this Agreement and the Security Agreements and Chase is hereby appointed to act as CAF Agent, on behalf the Documentary Agent for the Banks under this Agreement. None of the LendersAgents shall have any duties or responsibilities with respect hereto except those expressly set forth herein. Each Bank, and each subsequent holder of the Lenders any Promissory Note by its acceptance thereof, hereby irrevocably appoints and expressly authorizes the Agents Agents, without hereby limiting any implied authority, to take such actions action as the Agents may deem appropriate on its behalf of such Lender or holder and to exercise such powers under this Agreement as are specifically delegated to the Agents such Person by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentBanks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Banks all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent Banks hereunder, and promptly to distribute to each Lender and the CAF Agent Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders Banks to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Bank copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by the Administrative Agent. Without limiting the generality of the foregoing, the Collateral Agents are 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 Agreements. Each of the Agents may exercise any of its duties hereunder by or through their respective agents, officers or employees. In addition, each Bank hereby irrevocably authorizes and directs each Collateral Agent to enter, on behalf of each of them, into the respective Intercreditor Agreement and Security Agreements as contemplated pursuant to this Agreement.
(b) None of the Agents or any of its their respective directors, officers, agents or employees or agents shall be liable as such for any action taken or omitted to be taken by any of them except for its or his or her own gross negligence or willful 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 Borrowers Borrower or any other party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders Banks or the holders of the Notes for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement Agreement, the Notes or any other Loan Documents or other instruments or agreements. The Agents Administrative Agent may deem and treat the Lender which makes payee of any Loan Promissory Note as the holder of the indebtedness resulting therefrom owner thereof for all purposes hereof until it shall have received notice from the payee of such LenderPromissory Note notice, given as provided herein, of the transfer thereof. The Agents shall thereof in all cases be fully protected in acting, or refraining from acting, in accordance compliance 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. Each of the Agents 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. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents 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. The Lenders hereby acknowledge that the Agents shall be under no 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. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a 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, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an 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 each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunderSection 9.
Appears in 1 contract
The Agents. In order (a) For convenience of administration and to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase Documentary Agent and Hibernia is hereby appointed to act as CAF Agent, on behalf Co-Agent for the Lenders under this Agreement. None of the LendersAgents or Co- Agent shall have any duties or responsibilities with respect hereto except those expressly set forth herein or in the other Loan Documents. Each of the Lenders Lender and its successors and permitted assigns hereby irrevocably appoints and expressly authorizes the Agents Agents, without hereby limiting any implied authority, to take such actions action as the Agents may deem appropriate on its behalf of such Lender or holder and to exercise such powers under this Agreement as are specifically delegated to the Agents such Person by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower and the Guarantor of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder or as directed by the Required Lenders; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower or the Guarantor pursuant to this Agreement as received by the Administrative Agent. The Co-Agent is hereby expressly authorized to assist the Administrative Agent as requested by the Administrative Agent.
(b) None of the Agents or any of its their respective directors, officers, agents or employees or agents shall be liable as such for any action taken or omitted to be taken by any of them except for its or his or her own gross negligence or willful 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 Borrowers Borrower, the Guarantor or any other party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the LendersLenders and each successor or permitted assign. Each of the Agents 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 Person or personsPersons. No Agent or None of the Agents nor any of its their respective directors, officers, employees or agents shall have any responsibility to the Borrowers Borrower, the Guarantor or any other party on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent Borrower, the Guarantor or any Borrower other party of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents 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. The Lenders hereby acknowledge that none of the Agents shall be under no 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. Subject to .
(c) To the appointment and acceptance of a successor extent that any Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed not be reimbursed by the Required Lenders and shall have accepted Borrower for any costs, liabilities or expenses incurred in 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, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereundercapacity, each of the Agents, in its individual capacity and not as an 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 each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, 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 LoansApplicable Percentage hereunder) of any expenses incurred for the benefit of the Lenders in its role as Agentby the Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers Lenders and (iii) to indemnify and hold harmless each of the Agents Agent and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata shareApplicable Percentage, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as 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 to the extent the same shall not have been reimbursed by the Borrowersor any other Loan Document; provided provided, however, that no Lender shall be liable to any 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 willful wilful misconduct of such Agent or any of its directors, officers, employees or agents. Each .
(d) With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender agrees that any allocation made in good faith by and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of expenses business with the Borrower, the Guarantor or any of their respective Subsidiaries or other amounts referred Affiliates as if it were not an Agent.
(e) Subject to the appointment and acceptance of a successor Agent as provided below, any Agent may resign at any time by giving written notice thereof to the Lenders, the Borrower and the Guarantor. Upon any such resignation, the Required Lenders shall have the right to appoint, and the Borrower shall have the right to approve (such approval not to be unreasonably withheld or delayed) a successor Administrative Agent or Documentary Agent, as the case may be. If no successor Agent or Documentary Agent, as the case may be, shall have been so appointed and approved and shall have accepted such appointment, within 30 days after the retiring Agent's giving of notice of resignation, then the retiring Person may, on behalf of the Lenders, appoint a successor Administrative Agent or Documentary Agent, as the case may be, which shall be a Lender with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such Lender. Upon the acceptance of any appointment as Administrative Agent or Documentary Agent hereunder by a successor Administrative Agent or Documentary Agent, as the case may be, such successor Administrative Agent or Documentary 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 from and after such date be discharged from its duties and obligations hereunder. After any such retiring Agent's resignation hereunder as Administrative Agent or Documentary Agent, as applicable, the provisions of this paragraph between Article VIII and Section 10.04 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was acting as the Administrative Agent or Documentary Agent, as applicable.
(f) The Administrative Agent and the Documentary Agent shall be responsible for supervising the preparation, execution and delivery of this Agreement and the Facility A Credit Agreement other agreements and instruments contemplated hereby, any amendment or modification thereto and the closing of the transactions contemplated hereby and thereby.
(g) The obligations of the Administrative Agent and the Documentary Agent shall be conclusive separate and binding several and neither of them shall be responsible or liable for all purposes. the acts or omissions of the other, except, to the extent that any such Agent serves in more than one agent capacity, such Agent shall be responsible for the acts and omissions relating to each such agency function.
(h) Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this AgreementSECTION 8.01. The Agents. Citicorp North America, Chase Bank of Texas, National Association Inc. is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the Lenders. Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to any of the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by such Agent. None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from 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 Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual 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. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it 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. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 500.0 million or an Affiliate of any such bank. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, 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. After an Agent's resignation hereunder, the provisions of this Article and Section 10.05 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 an Agent. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an 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 each of the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither CGMI and Harris, as Joint Lead Arrangers and Joint Bookrunners, nor Harris, xx Xxxdication Agent, nor CIBC and Rabobank, as Co-Documentxxxxx Agents, in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 1 contract
Samples: Credit Agreement (Seminis Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association each Agent is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and the LC Disbursements and all other amounts due to the Lenders and the CAF Agent Issuing Lenders hereunder, and promptly to distribute to each Lender and the CAF Agent Issuing Lender its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as received by the Administrative Agent. Neither any Agent or 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 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 Borrowers any Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the 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 Issuing Lenders. Each of the Agents The Administrative 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 Person or personsPersons. No Agent or Neither the Agents nor any of its their directors, officers, employees or agents shall have any responsibility to the Borrowers any Borrower on account of the failure of or delay in performance or breach by the other Agent any Lender or any Issuing Lender of any of its obligations hereunder or to the other Agent any Lender or any Issuing Lender on account of the failure of or delay in performance or breach by any other LenderAgent, the any other Agent Lender or Issuing Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents The Administrative 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. The Lenders and the Issuing Lenders hereby acknowledge that the Agents Administrative Agent shall be under no 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. Subject to the appointment and acceptance of a successor Administrative Agent as provided below, either the Administrative Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignationLenders, the Required Lenders shall have the right to appoint a 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, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an 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 each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunder.Issuing
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably appoints the Agents as its agents and authorizes the Agents to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms hereof and provisions hereofof the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby bank or banks serving as the Agents hereunder shall have the same rights and powers in their capacity as Lenders as any other Lender and may exercise the same as though they were not Agents, and such bank or banks and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if they were not Agents hereunder. The Agents shall not have any duties or obligations except those expressly authorized by set forth herein. Without limiting the Lenders and generality of the CAF Agent, without hereby limiting any implied authority, foregoing (a) the Agents shall not be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Lenders Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the CAF Agent all payments of principal of Agents are required to exercise in writing by the Required Lenders, and interest on (c) except as expressly set forth herein, the Loans Agents shall not have any duty to disclose, and all other amounts due shall not be liable for the failure to disclose, any information communicated to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders Agents by or relating to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent Company or any of its directors, officers, employees or agents Subsidiaries. The Agents shall not be liable as such for any action taken or omitted not taken by any them with the consent or at the request of them except for its the Required Lenders or his the Lenders, as the case may be, or her in the absence of their own gross negligence or willful wilful misconduct. In addition, the Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agents by the Company or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth herein, covenants (iv) the validity, enforceability, effectiveness or agreements contained genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in this AgreementArticle III or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Agents. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document other writing believed by it in good faith them to be genuine and correct and to have been signed or sent by the proper person Person. The Agents also may rely upon any statement made to them orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by them to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the The Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it with respect to all matters arising hereunder them, and shall not be liable for any action taken or suffered in good faith not taken by it them in accordance with the advice of any such counsel, accountants or experts. The Lenders hereby acknowledge that Agents may perform any and all their duties and exercise their rights and powers by or through any one or more sub-agents appointed by the Agents. The Agents and any such sub-agent may perform any and all their duties and exercise their rights and powers through their respective Affiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Affiliates of the Agents shall be under no duty to take and 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 Lenderssuch sub-agent. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the BorrowersCompany. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to with the BorrowersCompany's written consent (which shall not be unreasonably withheld or delayed and shall not be required from the Company 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, with the Company's written consent (which shall not be unreasonably withheld or delayed and shall not be required if an Event of Default has occurred and is continuing), appoint a successor AgentAgent which shall be a bank or an Affiliate thereof, having in each case with a combined capital and surplus net worth of at least $500,000,000 or 1,000,000,000 and an Affiliate of any such bankoffice in New York, New York. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an retiring Agent, and each of the Agents retiring Agent shall be discharged from its duties and their 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 obligations hereunder. After an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated's resignation hereunder, the amount provisions of this Article and Section 10.03 shall continue in effect for its outstanding Loans) benefit in respect 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposeswhile it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or Agreement, any related agreement or any document furnished hereunder or thereunder. None of the Joint Lead Arrangers, the Co-Arrangers, the Syndication Agent or the Co-Documentation Agents named on the cover page of this Agreement shall, in their capacity as such, have any duties or responsibilities under this Agreement.
Appears in 1 contract
Samples: Term Loan Agreement (Readers Digest Association Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Banks hereby irrevocably appoints each of the Agents as its agent and authorizes the Agents to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents each such Agent, respectively, by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each bank serving as an Agent is hereby expressly authorized by hereunder shall have the Lenders same rights and powers in its capacity as a Lender as any other Lender and may exercise the CAF same as though it were not an Agent, without hereby and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent hereunder. No Agent shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting any implied authoritythe generality of the foregoing, (a) an Agent shall not be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) an 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 such 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 (c) except as expressly set forth in the CAF Loan Documents, an Agent all payments of principal of shall not have any duty to disclose, and interest on shall not be liable for the Loans and all other amounts due failure to disclose, any information relating to the Lenders and Company or any Subsidiary that is communicated to or obtained by the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No bank serving as an Agent or any of its directors, officers, employees or agents Affiliates in any capacity. An Agent shall not be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the 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 or his or her own gross negligence or willful wilful misconduct. An Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by a Borrower or a Lender, or and an Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection herewiththerewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in any Loan Document, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Each Agent also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The Lenders hereby acknowledge that exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it (i) each Agent and (ii) any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication 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 belowin this paragraph, either an Agent may resign at any time by notifying the Lenders Lenders, the other Agents, the Issuing Banks and the BorrowersCompany. Upon any such resignation, the Required Lenders shall have the right right, in consultation with the Company, to appoint a successor Agent acceptable to the Borrowerssuccessor. 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 such retiring Agent may, on behalf of the LendersLenders and the Issuing Banks, appoint a successor AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or Toronto, Ontario, as applicable, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Agent, in its individual capacity and not as an such retiring Agent shall have be discharged from its duties and obligations hereunder. The fees payable by the same rights and powers as any other Lender and may exercise Company to a successor Agent shall be the same as though it were not those payable to its predecessor unless otherwise agreed between the Company and such successor. After an Agent, and each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated's resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 9.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties 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 respect 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 actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Credit Agreement (Great Atlantic & Pacific Tea Co Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and Issuing Banks hereby irrevocably appoints the Agents as its agents and authorizes the Agents to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by In addition, to the Lenders and extent required under the CAF Agentlaws of any jurisdiction other than the United States, without hereby limiting any implied authority, (a) to receive on behalf each of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due Issuing Banks hereby grants to the Lenders and Agents any required powers of attorney to execute any Security Document governed by the CAF Agent hereunderlaws of such jurisdiction on such Lender’s or Issuing Bank’s behalf. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) the Agents shall not be subject to give notice on behalf any fiduciary or other implied duties, regardless of each whether a Default has occurred and is continuing, (b) the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agents are required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent Borrower or any of its directors, officers, employees the Subsidiaries that is communicated to or agents obtained by them or any of their Affiliates in any capacity. The Agents shall not be liable as such for any action taken or omitted not taken by any them with the consent or at the request of them except for its the Required Lenders (or his such other number or her percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of their own gross negligence or willful wilful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, or and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection herewiththerewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in any Loan Document, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Each Agent also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through its respective Related Parties. The Lenders hereby acknowledge that exculpatory provisions of the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to preceding paragraphs and the provisions of this Agreement unless Section 9.03 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. Any Person serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it shall be requested were not an Agent, and such Person and its Affiliates may accept deposits from, lend money to and generally engage in writing to do so by any kind of business with the Required LendersBorrower or any Subsidiary or other Affiliate thereof as if it were not an Agent hereunder. Subject to the appointment and acceptance of a successor Agent as provided belowin this paragraph, either each Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowersBorrower. Upon any such resignation, the Required Lenders (in the case of a resignation by the Administrative Agent) or the Administrative Agent (in the case of a resignation by the London Agent) shall have the right right, with the Borrower’s consent (which consent shall not be unreasonably withheld or delayed), to appoint a successor Agent acceptable to the Borrowerssuccessor. 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 LendersLenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York (in the case of a resignation by the Administrative Agent), having a combined capital and surplus bank with an office in London (in the case of at least $500,000,000 a resignation by the London Agent) or an Affiliate of any such bank. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Agent, in its individual capacity and not as an the retiring Agent shall have be discharged from its duties and obligations hereunder. The fees payable by the same rights and powers as any other Lender and may exercise Borrower to a successor Agent shall be the same as though it were not those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After an Agent, and each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated’s resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 9.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties 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 respect 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 actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents either 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 Agents either 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, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The parties agree that none of the Co-Lead Arrangers and Joint Bookrunners, the Syndication Agent or the Co-Documentation Agents 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. Each Lender acknowledges that in no event shall any Obligations in respect of any Hedging Agreement, cash management services or “Card Programs” (as defined in the Collateral Agreement), in each case provided by an Affiliate of a Lender, constitute Obligations for the purpose of any Security Document governed by the laws of The United Kingdom unless the documents evidencing such Hedging Agreement, cash management services or Card Programs, as applicable, contain the following language: “We [name of hedging counterparty, cash management provider or Card Programs provider] hereby confirm that by entering into this [insert name of contract], we intend to be party to the Trust Agreement (the “Trust Agreement”) dated February 16, 2005, between, among others, JPMorgan Chase Bank, N.A., as Security Trustee (the “Security Trustee”), and the Secured Parties named therein, and (a) undertake to perform all the obligations expressed in the Trust Agreement to be assumed by a Secured Party and (b) agree that we shall be bound by all the provisions of the Trust Agreement, as if we had been an original party thereto. We further agree that the Security Trustee may rely upon our undertaking and agreement given herein.”
Appears in 1 contract
The Agents. In order (a) For convenience of administration and to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association Chemical is hereby appointed to act as Administrative Agent, FTX Collateral Agent and FRP Collateral Agent for the Banks under this Agreement and the Security Agreements and Chase is hereby appointed to act as CAF Agent, on behalf the Documentary Agent for the Banks under this Agreement. None of the LendersAgents shall have any duties or responsibilities with respect hereto except those expressly set forth herein or in the other Loan Documents. Each Bank, and each subsequent holder of the Lenders any Promissory Note by its acceptance thereof, hereby irrevocably appoints and expressly authorizes the Agents Agents, without hereby limiting any implied authority, to take such actions action as the Agents may deem appropriate on its behalf of such Lender or holder and to exercise such powers under this Agreement as are specifically delegated to the Agents such Person by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentBanks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Banks all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent Banks hereunder, and promptly to distribute to each Lender and the CAF Agent Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders Banks to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder or as directed by the Required Banks; and (c) to distribute to each Bank copies of all notices, financial statements and other materials delivered by the Borrowers pursuant to this Agreement as received by the Administrative Agent. Without limiting the generality of the foregoing, the Collateral Agents are hereby expressly authorized to execute any and all documents (including releases) with respect to the collateral under the Security Agreements 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 Agreements. Each of the Agent and the Collateral Agents may exercise any of its duties hereunder by or through their respective agents, officers or employees. In addition, each Bank hereby irrevocably authorizes and directs the Collateral Agents to enter, on behalf of each of them, into the FTX Intercreditor Agreement (in the case of the FTX Collateral Agent) and the Security Agreements as contemplated pursuant to this Agreement.
(b) None of the Agents or any of its their respective directors, officers, agents or employees or agents shall be liable as such for any action taken or omitted to be taken by any of them except for its or his or her own gross negligence or willful 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 Borrowers or any other party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders Banks or the holders of the Notes for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement Agreement, the Notes or any other Loan Documents or other instruments or agreements. The Agents Administrative Agent may deem and treat the Lender which makes payee of any Loan Promissory Note as the holder of the indebtedness resulting therefrom owner thereof for all purposes hereof until it shall have received notice from the payee of such LenderPromissory Note notice, given as provided herein, of the transfer thereof. The Agents shall thereof in all cases be fully protected in acting, or refraining from acting, in accordance compliance 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. Each of the Agents 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. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents 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. The Lenders hereby acknowledge that the Agents shall be under no 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. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a 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, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an 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 each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunderSection 9.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association JPMCB is hereby appointed to act as Administrative Paying Agent on behalf of the Lenders and Chase is Issuing Banks, and JPMCB and Bank of America, N.A. are hereby appointed to act as CAF Agent, Administrative Agents on behalf of the LendersLenders and Issuing Banks. Each of the Lenders and Issuing Banks hereby irrevocably authorizes the Agents each Agent to take such actions on behalf of such Lender or holder Issuing Bank, as the case may be, and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Paying Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Banks all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent or any Issuing Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Paying Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by the Paying Agent. It is understood that the Agents shall not have any duties or obligations except those expressly set forth herein. Neither any Agent or 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 Borrowers Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents No Agent shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents Each Agent may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it until, in the case of the Paying Agent, the Paying Agent shall have received notice from such Lender or, in the case of any other Agent, such Agent shall have received notice from the Paying Agent that it received such notice from such Lender, in each case, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall 50 be binding on all the Lenders. Each of the Agents 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. No Neither any Agent or nor any of its directors, officers, employees or agents shall have any responsibility to the Borrowers Borrower on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents appointed in good faith by such Agent or employees of any thereof 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. The Lenders hereby acknowledge that the Agents each Agent shall be under no 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. Subject to the appointment and acceptance of a successor Paying Agent as provided below, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowersBorrower. Upon any such resignationresignation of the Paying Agent, the Required Lenders shall have the right to appoint a successor Paying Agent acceptable to the BorrowersBorrower. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Paying Agent gives notice of its resignation, then the retiring Paying Agent may, on behalf of the LendersLenders and the Issuing Banks, appoint a successor AgentPaying Agent which shall be 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 any such bank. Upon the acceptance of any appointment as a Paying Agent hereunder by a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Paying Agent and the retiring Paying Agent shall be discharged from its duties and obligations hereunder. After any Agent's resignation hereunder, the provisions of this Article 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 an Agent. With respect to the Loans made by it hereunder, each of the Agents, any Agent in its individual capacity and not as an 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 each of the Agents Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the AgentsPaying 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 Loanshereunder) of any expenses incurred for the benefit of the Lenders in its role as by such 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 Borrowers Borrower, and (iii) to indemnify and hold harmless each of the Agents 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 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 BorrowersBorrower; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any related agreement or any document furnished hereunder or thereunder. Each of the Borrower and its Subsidiaries and the Lenders acknowledges that Merrill Lynch Capital Corporation and Citibank, N.A. have no responsxxxxxxxex xx obligations pursuant to this Agreement in their capacity as syndication agents.
Appears in 1 contract
Samples: 364 Day Competitive Advance and Revolving Credit Facility Agreement (At&t Wireless Services Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank the Persons named in the heading of Texas, National Association is this Agreement are hereby appointed to act as Administrative Agent, London Agent and Chase is hereby appointed to act as CAF Agent, Tokyo Agent on behalf of the LendersLenders and the Issuing Bank. Each of the Lenders Lenders, each assignee of any Lender and the Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee or the Issuing Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is and, to the extent expressly provided herein, the other Agents are hereby expressly authorized by the Lenders and the CAF AgentIssuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Bank all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and or the CAF Agent Issuing Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, the Administrative Agent is hereby expressly authorized to release any Subsidiary Guarantor from its obligations under the Subsidiary Guarantee Agreement in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person other than the Company or an Affiliate of the Company in a transaction permitted by Section 6.04. With respect to the Loans made by it hereunder, each 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 the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that such Agent is required to exercise upon receipt of notice 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 11.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its directors, officers, employees or agents Affiliates in any capacity. No Agent shall be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 11.02) or in the absence of its or his or her own gross negligence or willful wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by a Borrower (in which case such Agent shall give written notice to each other Lender), or and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein 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 herewithherewith or therewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth herein or therein, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Each Agent also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for any Borrower), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The Lenders hereby acknowledge that exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it each Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication 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 belowin this paragraph, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersCompany. Upon any such resignation, the Required Lenders shall have the right right, in consultation with the Company, to appoint a successor Agent acceptable to the Borrowerssuccessor. 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 LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an retiring Agent, and each the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 11.03 shall continue in effect for the Agents benefit of such retiring Agent, its sub-agents and their Affiliates may accept deposits from, lend money respective Related Parties in respect of any actions taken or omitted to and generally engage in be taken by any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof them while it was acting as if it were not an Agent. Each Lender agrees (ia) to reimburse the Agents, 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 LoansLoans and available Commitments hereunder) of any expenses incurred for the benefit of the Lenders in its role as Agentby the Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which that shall not have been reimbursed by the Borrowers Company or any other Loan Party and (ib) to indemnify and hold harmless each of the Agents Agent and any of its directors, officers, employees or agentsRelated Parties, 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 that may be imposed on, incurred by or asserted against it in its capacity as Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or 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 BorrowersCompany or any other Loan Party; provided PROVIDED that no Lender shall be liable to an Agent or any Agent such other indemnified Person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting that are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful wilful misconduct of such Agent or any of its directors, officers, employees or agents. Each US Tranche Lender agrees that any allocation made to reimburse each of the Issuing Bank and its directors, officers, employees and agents, in good faith by each case, to the Agents of expenses or other amounts referred same extent and subject to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding same limitations as provided above for all purposesthe Agents. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Five Year Credit Agreement (Edwards Lifesciences Corp)
The Agents. In order to expedite the transactions contemplated by this AgreementSECTION 8.01. The Agents. Citicorp North America, Chase Bank of Texas, National Association Inc. is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the Lenders. Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to any of the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by such Agent. None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from 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 Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual 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. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it 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. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 500.0 million or an Affiliate of any such bank. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, 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. After an Agent's resignation hereunder, the provisions of this Article and Section 10.05 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 an Agent. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an 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 each of the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither CGMI and Harris, as Joint Lead Arrangers and Joint Bookrunners, nor Harris, ax Xxxxication Agent, nor CIBC and Rabobank, as Co-Documentaxxxx Xgents, in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 1 contract
Samples: Credit Agreement (Seminis Inc)
The Agents. SECTION 7.01. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association CUSA is hereby appointed to act as Administrative Paying Agent on behalf of the Lenders and Chase is JPMCB and CUSA are hereby appointed to act as CAF Agent, Administrative Agents on behalf of the Lenders. The Administrative Agents do not assume any responsibility or obligation under this Agreement or any duties as agents for the Lenders. The title "Administrative Agent" implies no fiduciary obligation on the part of any Administrative Agent to any Person and the use of such title does not impose on any Administrative Agent any duties under this Agreement. Each of the Lenders hereby irrevocably authorizes the Agents each Agent to take such actions on behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Paying Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Revolving Credit Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Paying Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by the Paying Agent. It is understood that the Agent Parties and the Syndication Agent shall not have any duties or obligations except those expressly set forth herein. Neither any Agent Party 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 Borrowers Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents No Agent Party shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents Each Agent Party may deem and treat the Lender which makes any Revolving Credit Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it until, in the case of the Paying Agent, the Paying Agent shall have received notice from such Lender or, in the case of any other Agent Party, such Agent Party shall have received notice from the Paying Agent that it received such notice from such Lender, in each case, given as provided herein, of the transfer thereof. The Agents Each Agent Party shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent Party 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. No Neither any Agent or Party nor any of its directors, officers, employees or agents shall have any responsibility to the Borrowers Borrower on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents Agent Party 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. The Lenders hereby acknowledge that the Agents each Agent shall be under no 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. Subject to the appointment and acceptance of a successor Paying Agent as provided below, either any Agent may resign at any time by notifying the Lenders and the BorrowersBorrower. Upon any such resignationresignation of the Paying Agent, the Required Lenders shall have the right to appoint a successor Paying Agent acceptable to the BorrowersBorrower. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Paying Agent gives notice of its resignation, then the retiring Paying Agent may, on behalf of the Lenders, appoint a successor AgentPaying Agent which shall be 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 any such bank. Upon the acceptance of any appointment as a Paying Agent hereunder by a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Paying Agent and the retiring Paying Agent shall be discharged from its duties and obligations hereunder. After any 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 an Agent. With respect to the Revolving Credit Loans made by it hereunder, each of the Agents, any Agent in its individual capacity and not as an 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 each of the Agents Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the AgentsPaying 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) Pro Rata Share of any expenses incurred for the benefit of the Lenders in its role as by such 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 Borrowers Borrower, and (iii) to indemnify and hold harmless each of the Agents Agent Party and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata sharePro 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 Party 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 BorrowersBorrower; provided that no Lender shall be liable to any Agent Party for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent Party or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith to indemnify the Issuing Banks (to the extent not promptly reimbursed by the Agents Borrower) from and against such Lender's ratable share (determined as provided below) of any and all liabilities, 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 any such Issuing Bank in any way relating to or arising out of this Agreement or any action taken or omitted by such Issuing Bank hereunder or in connection herewith; provided, however, that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements either (i) resulting from such Issuing Bank's gross negligence or willful misconduct as found in a final, non-appealable judgment by a court of competent jurisdiction or (ii) relating to the reimbursement of any draw under a Letter of Credit paid after the date on which the Lenders' obligations to purchase or hold participations in Letters of Credit has terminated in accordance with Section 2.03(b). Without limitation of the foregoing, each Lender agrees to reimburse any such Issuing Bank promptly upon demand for its ratable share of any costs and expenses (including, without limitation, fees and expenses of counsel) payable by the Borrower under Section 8.05, to the extent that such Issuing Bank is not promptly reimbursed for such costs and expenses by the Borrower. For purposes of this paragraph, each Lender's respective ratable share of any amount shall be determined, at any time, according to the sum of (i) the aggregate principal amount of the Revolving Credit Loans outstanding at such time and owing to such Lender, (ii) such Lender's respective Pro Rata Share of the aggregate Available Amount of all Letters of Credit outstanding at such time and (iii) such Lender's respective Unused Commitment at such time; provided that the aggregate principal amount of Revolving Credit Loans owing to the Issuing Banks as a result of drawings under Letters of Credit shall be considered to be owed to the Lenders ratably in accordance with their respective Revolving Credit Commitments (or, if the Revolving Credit Commitments have expired or been terminated, in accordance with clause (ii) of the definition of "Pro Rata Share"). The failure of any Lender to reimburse any such Issuing Bank promptly upon demand for its ratable share of any amount required to be paid by the Lenders to such Issuing Bank as provided herein shall not relieve any other Lender of its obligation hereunder to reimburse such Issuing Bank for its ratable share of such amount, but no Lender shall be responsible for the failure of any other Lender to reimburse any such Issuing Bank for such other Lender's ratable share of such amount. Without prejudice to the survival of any other agreement of any Lender hereunder, the agreement and obligations of each Lender contained in the prior two paragraphs of this Section 7.01 shall survive the payment in full of principal, interest and all other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposespayable hereunder. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent Party 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 Agents any Agent Party 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 or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Credit Agreement (At&t Corp)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent or London Agent in the heading of this Agreement and its successors to serve as Administrative Agent or London Agent, respectively, under the Loan Documents, and authorizes the Agents to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby Agents shall not have any duties or obligations except those expressly authorized by set forth in the Lenders and Loan Documents. Without limiting the CAF Agent, without hereby limiting any implied authoritygenerality of the foregoing, (a) the Agents shall not be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agents are required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as an Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 9.02), provided that no Agent shall be required to take any action that, in its opinion, could expose such Agent to liability or be contrary to any Loan Document or applicable law, rule or regulation, and (c) except as expressly set forth in the CAF Agent all payments of principal of Loan Documents, the Agents shall not have any duty to disclose, and interest on shall not be liable for the Loans and all other amounts due failure to disclose, any information relating to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent Borrower or any of its directors, officers, employees the Subsidiaries that is communicated to or agents obtained by them or any of their Affiliates in any capacity. The Agents shall not be liable as such for any action taken or omitted not taken by any them with the consent or at the request of them except for its the Required Lenders (or his such other number or her percentage of the Lenders as shall be necessary, or as an Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 9.02) or in the absence of their own gross negligence or willful misconductwilful misconduct (as determined by a final, non-appealable judgment of a court of competent jurisdiction). Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein 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 herewithherewith or therewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in any Loan Document, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, sufficiency validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge Notwithstanding anything herein to the contrary, be entitled to rely on the Agents shall not have any instrument liability arising from any confirmation of the Revolving Exposure 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. No Agent component amounts thereof, any Exchange Rate or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithUS Dollar Equivalent. Each of the Agents may execute any and all duties hereunder by or through agents or employees and Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the advice of proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through its respective Related Parties. The Lenders hereby acknowledge that exculpatory provisions of the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to preceding paragraphs and the provisions of this Agreement unless Section 9.03 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. Any Person serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it shall be requested were not an Agent, and such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in writing any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent hereunder and without any duty to do so by account therefor to the Required LendersLenders or Issuing Banks. Subject to the appointment and acceptance of a successor Agent as provided belowin this paragraph, either each Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowersBorrower. Upon any such resignation, the Required Lenders (in the case of a resignation by the Administrative Agent) or the Administrative Agent (in the case of a resignation by the London Agent) shall have the right right, with the Borrower’s approval (so long as no Event of Default has occurred and is continuing) to appoint a successor Agent acceptable to the Borrowerssuccessor. 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 LendersLenders and the Issuing Banks, appoint a successor AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Agent, in its individual capacity and not as an the retiring Agent shall have be discharged from its duties and obligations hereunder. The fees payable by the same rights and powers as any other Lender and may exercise Borrower to a successor Agent shall be the same as though it were not those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After an Agent’s resignation hereunder, the provisions of this Article and each Section 9.03 shall continue in effect for the benefit of the Agents such retiring Agent, its sub–agents and their Affiliates may accept deposits from, lend money respective Related Parties in respect of any actions taken or omitted to and generally engage in be taken by any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof them while it was acting as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender Issuing Bank acknowledges that it has, independently and without reliance upon the Agents either Agent, any Arranger 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 Issuing Bank also acknowledges that it will, independently and without reliance upon the Agents either Agent, any Arranger 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, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The parties agree that none of the Arrangers, the Syndication Agent or the Documentation Agents referred to on the cover page of this Agreement shall, in its capacity as such, have any duties or responsibilities under this Agreement or any other Loan Document.
Appears in 1 contract
Samples: Credit Agreement (Broadridge Financial Solutions, Inc.)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably appoints the Agents as their agents and authorizes the Agents to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Required Lenders may at any time, with the consent of the Borrowers (which consent shall not be unreasonably withheld or delayed, and shall not be required if an Event of Default shall have occurred and be continuing), replace the Administrative Agent is hereby expressly authorized by (it being understood that any such replacement of the Administrative Agent shall be a Person that serves as agent for other credit facilities of a comparable size), provided that the Required Lenders may not replace the Administrative Agent unless, after giving effect to such replacement and each contemporaneous assignment, the CAF Required Lenders or the Borrowers shall have arranged in connection with such replacement that (i) neither the Administrative Agent nor any of its Affiliates shall have outstanding any Loan or Commitment or other obligation of any kind under this Agreement or any other Loan Document, unless such Person shall consent otherwise, and (ii) each of the Administrative Agent and its Affiliates shall have received any required payment in full of all amounts owing to it under or in respect of this Agreement and each other Loan Document. The Lenders may replace the Collateral Agent in accordance with the provisions of the Security Documents. Any bank serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, without hereby and such bank may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any of their respective Affiliates as if it were not an Agent hereunder. No Agent shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting any implied authoritythe generality of the foregoing, (a) no Agent shall be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that such Agent is required to exercise as directed by the Required Lenders (or such other number or percentage of the Lenders and as shall be necessary under the CAF Agent all payments of principal of and interest on circumstances as provided in Section 9.02 or in the Loans and all other amounts due to the Lenders and the CAF Agent hereunderSecurity Documents), and promptly (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to distribute disclose, and shall not be liable for the failure to each Lender and the CAF Agent its proper share of each payment so received; (a) disclose, any information relating to give notice on behalf of each of the Lenders either Borrower that is communicated to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No or obtained by a bank serving as an Agent or any of its directors, officers, employees or agents Affiliates in any capacity. No Agent shall be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the 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 Security Documents) or in the absence of its or his or her own gross negligence or willful misconductmisconduct as determined by non-appealable final judgment of a court of competent jurisdiction. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by either Borrower or a Lender (or communicated by such Agent to any Person), or and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewithwith any Loan Document, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in any Loan Document, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and other than to confirm receipt of items expressly required to be delivered to any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Each Agent also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for either Borrower), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The Lenders hereby acknowledge that exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it such Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided belowin this paragraph, either the Administrative Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right right, subject to the approval of the Borrowers (such approval not to be unreasonably withheld or delayed, and shall not be required upon the occurrence and during the continuance of an Event of Default), to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the LendersLenders and subject to the approval of the Borrowers (such approval not to be unreasonably withheld or delayed, and shall not be required upon the occurrence and during the continuance of an Event of Default), appoint a successor Administrative Agent, which shall be any commercial bank organized under the laws of the United States of America or any State thereof having a combined capital and surplus and undivided profits of at least not less than $500,000,000 or an Affiliate of any such bank500,000,000. Upon the acceptance of any its appointment as the Administrative Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Administrative Agent, in its individual capacity and not as an the retiring Administrative Agent shall have be discharged from its duties and obligations hereunder. The fees payable by the same rights and powers as any other Lender and may exercise Borrowers to a successor Administrative Agent shall be the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money those payable to and generally engage in any kind of business with its predecessor unless otherwise agreed between the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an and such successor. After the Administrative Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated’s resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 9.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Administrative Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties 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 respect 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 actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agentsthem while it was acting as the Administrative Agent. Each Lender agrees that any allocation made The Collateral Agent may resign in good faith by accordance with the Agents provisions of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesSecurity Documents. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Anything herein to the contrary notwithstanding, no Co-Syndication Agent or Co-Documentation Agent listed on the cover page hereof shall have any rights, powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity as a Lender hereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association Credit Suisse First Boston is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the LendersLenders and the Issuing Bank (for purposes of this Article VIII, the Administrative Agent and the Collateral Agent are referred to collectively as the "Agents"). Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee or the Issuing Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Bank all payments of principal of and interest on the Loans Loans, all payments in respect of L/C Disbursements and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and or the CAF Agent Issuing Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Parent, the Borrower or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of its the foregoing, the Agents are 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. Neither the Agents nor any of their respective 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 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 Borrowers Borrower or any other Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents, instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents 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. No Agent or Neither the Agents nor any of its their respective directors, officers, employees or agents shall have any responsibility to the Borrowers Parent, the Borrower or any other Loan Party on account of the failure of or delay in performance or breach by the other Agent or any Lender or the Issuing Bank of any of its obligations hereunder or to the other Agent or any Lender or the Issuing Bank on account of the failure of or delay in performance or breach by any other LenderLender or the Issuing Bank or the Parent, the other Agent Borrower or any Borrower other Loan Party of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents 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. The Lenders hereby acknowledge that the Agents neither Agent shall be under no 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. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the BorrowersBorrower. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. 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 AgentAgent which shall be 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 any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, 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. After the Agent's resignation hereunder, the provisions of this Article and Section 10.05 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. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an 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 each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary of the Subsidiaries or other Affiliate thereof as if it were not an Agent. Each Lender agrees (ia) to reimburse the Agents, 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 LoansLoans and available commitments hereunder) of any expenses incurred for the benefit of the Lenders in its role as Agentby the Agents, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which that shall not have been reimbursed by the Borrowers Borrower and (ib) to indemnify and hold harmless each of the Agents 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 that may be imposed on, incurred by or asserted against it in its capacity as Agent or any way of them relating to or arising out of this Agreement or any other Loan Document or 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 BorrowersBorrower or any other Loan Party; provided that no Lender shall be liable to an Agent or any Agent such other indemnified person for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting that are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful wilful misconduct of such Agent or any of its directors, officers, employees or agents. Each Revolving Credit Lender agrees that any allocation made to reimburse each of the Issuing Bank and its directors, officers, employees and agents, in good faith by each case, to the Agents of expenses or other amounts referred same extent and subject to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding same limitations as provided above for all purposesthe Agents. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Each Lender acknowledges and agrees that the Documentation Agent will have no duties or responsibilities hereunder or under the other Loan Documents.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this AgreementAgreement and the other Credit Documents, JPMorgan Chase Bank of TexasBank, National Association N.A. is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the LendersBanks. Each of the Lenders Banks hereby irrevocably authorizes the Agents Administrative Agent to take such actions on behalf of such Lender or holder Bank and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereofhereof or of any other Credit Document, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentBanks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Banks all payments of principal of and interest on the Loans Loans, all payments in respect of any L/C Disbursements and all other amounts due to the Lenders and the CAF Agent Banks hereunder, and promptly to distribute to each Lender and the CAF Agent Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders Banks to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Bank copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by the Administrative Agent. Neither any Agent or 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 Borrowers Borrower of any of the terms, conditions, covenants or agreements contained in this AgreementAgreement or any other Credit Document. The Agents Neither Agent shall not be responsible to the Lenders Banks for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement Agreement, any other Credit Document or other instruments or agreements. The Agents Administrative Agent may deem and treat the Lender Bank which makes any Loan or the Issuing Bank which issues any Letter of Credit, as the case may be, as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderBank or Issuing Bank, as the case may be, given as provided herein, of the transfer thereof. The Agents Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders Banks and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the LendersBanks. Each of the Agents The Administrative 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. No Neither the Administrative Agent or nor any of its directors, officers, employees or agents shall have any responsibility to the Borrowers Borrower on account of the failure of or delay in performance or breach by the other Agent or any Lender Bank of any of its obligations hereunder or to the other Agent or any Lender Bank on account of the failure of or delay in performance or breach by any other Lender, Bank or the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents The Administrative 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 or under any other Credit Document 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 Lenders Banks hereby acknowledge that the Agents Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement or any other Credit Document unless it shall be requested in writing to do so by the Required LendersBanks. Subject to the appointment and acceptance of a successor Administrative Agent as provided below, either the Administrative Agent may resign at any time by notifying the Lenders Banks and the BorrowersBorrower. Upon any such resignation, the Required Lenders Banks shall have the right to appoint a successor Administrative Agent acceptable to the BorrowersBorrower. 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 Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the LendersBanks, appoint a successor AgentAdministrative Agent which shall be 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 any such bank. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor bank, 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. After the Administrative Agent's resignation hereunder, the provisions of this Article and Section 11.05 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 Administrative Agent. With respect to the Loans made by it hereunder or the Letters of Credit issued by or participated in by it hereunder, as the case may be, each of the Agents, Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender Bank and may exercise the same as though it were not an Agent, and each of the Agents Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender Bank agrees (i) to reimburse the Agentseach 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 LoansPercentage hereunder) of any expenses incurred for the benefit of the Lenders in its role as Banks by such Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the LendersBanks, which shall not have been reimbursed by the Borrowers Borrower, and (iii) to indemnify and hold harmless each of the Agents 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 Agent or any of them in any way relating to or arising out of this Agreement Agreement, any other Credit Document or any action taken or omitted by it or any of them under this Agreement or any other Credit Document to the extent the same shall not have been reimbursed by the BorrowersBorrower; provided PROVIDED that no Lender Bank shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender Bank acknowledges that it has, independently and without reliance upon the Agents Administrative 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 Agents Administrative 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 or any related agreement or any document furnished hereunder or thereunder. Neither the Documentation Agent nor the Syndication Agent shall have any duties or responsibilities in its capacity as such.
Appears in 1 contract
Samples: Letter of Credit Issuance and Reimbursement Agreement (Lucent Technologies Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association each Agent is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and the LC Disbursements and all other amounts due to the Lenders and the CAF Agent Issuing Lenders hereunder, and promptly to distribute to each Lender and the CAF Agent Issuing Lender its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as received by the Administrative Agent. Neither any Agent or 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 Borrowers any Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the 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 Issuing Lenders. Each of the Agents The Administrative 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 Person or personsPersons. No Agent or Neither the Agents nor any of its their directors, officers, employees or agents shall have any responsibility to the Borrowers any Borrower on account of the failure of or delay in performance or breach by the other Agent any Lender or any Issuing Lender of any of its obligations hereunder or to the other Agent any Lender or any Issuing Lender on account of the failure of or delay in performance or breach by any other LenderAgent, the any other Agent Lender or Issuing Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents The Administrative 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. The Lenders and the Issuing Lenders hereby acknowledge that the Agents Administrative Agent shall be under no 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. Subject to the appointment and acceptance of a successor Administrative Agent as provided below, either the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint from the Lenders a successor Agent acceptable to the Borrowerssuccessor. 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 from the Lenders a successor AgentAdministrative Agent which shall be 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 affiliate of any such bank, which successor shall be acceptable to Viacom (such acceptance not to be unreasonably withheld). Upon the acceptance of any appointment as Administrative Agent hereunder by a successor bank, 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. After the Administrative Agent's resignation hereunder, the provisions of this Article and Section 9.5 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 Administrative Agent. With respect to the Loans made by it them and their LC Exposure hereunder, each of the Agents, Agents in its their individual capacity and not as an Agent Agents shall have the same rights and powers as any other Lender and may exercise the same as though it they were not an AgentAgents, and each of the Agents and their Affiliates affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary of their respective Subsidiaries or other any Affiliate thereof as if it they were not an AgentAgents. Each Lender and Issuing Lender agrees (i) to reimburse the Agents, on demand, Administrative Agent in the amount of its pro rata share (based on its Commitment hereunder Total Facility Percentage or, if after the Commitments date on which the Loans shall have been terminatedpaid in full, the amount of based on its outstanding LoansTotal Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders in its role as or the Issuing Lenders by the Administrative Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Issuing Lenders, which shall not have been reimbursed by the Borrowers or on behalf of any Borrower and (iii) to indemnify and hold harmless each of the Agents Administrative 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 Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement Agreement, to the extent the same shall not have been reimbursed by the Borrowersor on behalf of Viacom; provided provided, that no Lender or Issuing Lender shall be liable to the Administrative Agent or any Agent such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such the Administrative Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Issuing Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender or Issuing 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 Issuing Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender or Issuing 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 or Agreement, any related agreement or any document furnished hereunder or thereunder. Neither the Documentation Agent, the Co-Syndication Agents, the Lead Arranger nor any managing agent shall have any duties or responsibilities hereunder in its capacity as such.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Bank hereby irrevocably appoints (i) The Chase Manhattan Bank as Administrative Agent, and (ii) The Chase Manhattan Bank as Collateral Agent, (the Administrative Agent and the Collateral Agent, for purposes of this Article being referred to individually as an "Agent" and collectively as the "Agents"), and authorizes the Agents to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofof this Agreement or by the terms of any other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent or 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 Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents 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. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents 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. The Lenders hereby acknowledge that the Agents shall be under no 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. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a 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, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not bank serving as an Agent shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents such bank and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers any Credit Party or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse None of the Agents, on demand, Agents shall have any duties or obligations except those expressly set forth herein or in the amount other Loan Documents. Without limiting the generality of its pro rata share the foregoing, (based on its Commitment hereunder ora) the Agents shall not be subject to any fiduciary or other implied duties, if the Commitments regardless of whether a Default has occurred and is continuing, (b) no Agent shall have been terminatedany duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the amount of its outstanding Loans) of any expenses incurred for other Loan Documents that such Agent is required to exercise in writing by the benefit Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in its role Section 9.02), and (c) except as Agentexpressly set forth herein, including counsel fees no Agent shall have any duty to disclose, and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by be liable for the Borrowers and (i) failure to indemnify and hold harmless each of the Agents and disclose, any information relating to any Credit Party or 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 Subsidiaries that is communicated to or arising out of this Agreement or any action taken or omitted obtained by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directorsAffiliates in any capacity; provided, officershowever, employees that Agents shall give Lenders immediate written notice of any action taken or agentsnotice received or given by any of them pursuant to the Intercreditor Agreement. Each Lender agrees that No Agent shall be liable for any allocation action taken or not taken by it 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 wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrowers or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon connection with this Agreement or any related agreement other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document. The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document furnished or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for any Credit 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. Each 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 it including, without limitation, its duties, rights and powers under any Loan Documents in respect of the Collateral or any portion thereof. Each 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 Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Agent. Subject to the foregoing, each Agent (including but not limited to the Administrative Agent) acting under or in respect of the Collateral, shall act for the ratable benefit of the Lenders and the Issuing Bank as appropriate hereunder (unless otherwise provided herein or thereunderin any other Loan Documents) and shall be entitled to the exculpations, privileges, indemnities and other protections provided for the benefit of the Agent herein or therein.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this AgreementCiticorp North America, Chase Bank of Texas, National Association Inc. is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each Lender that holds Loans or has Commitments and each holder of any Related Hedging Obligations and each person holding Overdraft Obligations (in each case, in its capacity as such) hereby irrevocably designates and appoints the Collateral Agent as an agent of such person under this Agreement and each other Loan Document to which the Collateral Agent is a party. Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to any of the Borrowers Loan Parties of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by any of its directors, officers, employees or agents the Loan Parties pursuant to this Agreement as received by such Agent. None of the Agents nor any of their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from 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 Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual 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. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it 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. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersBorrower. Upon any such resignation, the Required Requisite Lenders (with the consent of the Borrower, not to be unreasonably withheld) shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent maymay (with the consent of the Borrower, not to be unreasonably withheld), on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 500.0 million or an Affiliate of any such bank. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, 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. After an Agent’s resignation hereunder, the provisions of this Article 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 an Agent. With respect to the any Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent. In addition, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it any were not an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither CGMI, as Sole Lead Arranger and Sole Bookrunner, nor Citicorp Xxxxx Xxxxxxx, Inc., as Syndication Agent, nor Citicorp North America, Inc., as Documentation Agent, in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 1 contract
Samples: Credit Agreement (Polymer Group Inc)
The Agents. In order to expedite the transactions contemplated by this AgreementCiticorp North America, Chase Bank of Texas, National Association Inc. is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the Lenders. Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrowers pursuant to this Agreement as received by such Agent. None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from 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 Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual 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. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it 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. The Lenders hereby acknowledge that the Agents shall be under no 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. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a 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, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an 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 each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Credit Agreement (Consolidated Communications Illinois Holdings, Inc.)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Texas Commerce Bank of Texas, National Association is hereby appointed to act as Administrative Agent Agent, and Chase Chemical Bank is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by the Administrative Agent. No Agent or any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them then except for its or his or her own gross negligence or willful 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 Borrowers Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all 61 57 purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents 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. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers Borrower on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any the Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents 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. The Lenders hereby acknowledge that the Agents shall be under no 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. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the BorrowersBorrower. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the BorrowersBorrower. 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, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent 62 58 and the retiring Agent shall be discharged from its duties and obligations hereunder. After any 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 Agent. With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an 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 each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers Borrower and (iii) to indemnify and hold harmless each of the Agents 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 BorrowersBorrower; provided that no Lender shall be liable to any 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 wilful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and 63 59 information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Competitive Advance and Revolving Credit Facility Agreement (Texas Utilities Electric Co)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Paying Agent on behalf of the Lenders, and Chase is and Bank of America, N.A. are hereby appointed to act as CAF Agent, Administrative Agents on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents each Agent to take such actions on behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Paying Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Paying Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by the Paying Agent. It is understood that the Agents shall not have any duties or obligations except those expressly set forth herein. Neither any Agent or 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 Borrowers Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents No Agent shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents Each Agent may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it until, in the case of the Paying Agent, the Paying Agent shall have received notice from such Lender or, in the case of any other Agent, such Agent shall have received notice from the Paying Agent that it received such notice from such Lender, in each case, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents 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. No Neither any Agent or nor any of its directors, officers, employees or agents shall have any responsibility to the Borrowers Borrower on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents appointed in good faith by such Agent or employees of any thereof 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. The Lenders hereby acknowledge that the Agents each Agent shall be under no 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. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a 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, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an 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 each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Competitive Advance and Revolving Credit Facility Agreement (At&t Wireless Services Inc)
The Agents. In order to expedite the transactions contemplated by this AgreementSECTION 8.01. The Agents. Citicorp North America, Chase Bank of Texas, National Association Inc. is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the Lenders. Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to any of the Borrowers of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrowers pursuant to this Agreement as received by such Agent. None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from 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 Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual 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. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it 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. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the Borrowers. Upon any such resignation, the Required Requisite Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 500.0 million or an Affiliate of any such bank. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, 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. After an Agent's resignation hereunder, the provisions of this Article 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 an Agent. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an 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 each of the Agents such Agent and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither CSFB and DBTCA as Co-Syndication Agents, CSFB and CGMI, as Joint Lead Arrangers and Joint Bookrunners, nor CoBank, as Documentation Agent, in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 1 contract
Samples: Credit Agreement (Consolidated Communications Texas Holdings, Inc.)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association JPMCB is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) as provided in Article VII, to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as received by the Administrative Agent. Neither the Agents nor any of its their 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 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 Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement Agreement, or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the The Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it them in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or Neither the Agents nor any of its their directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent Lender or any a Borrower of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the The Agents may execute any and all duties hereunder and under the other Loan Documents by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it them with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it them in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it them pursuant to the provisions of this Agreement or any other Loan Document unless it they shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided below, either the Administrative Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. 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 AgentAdministrative Agent which shall be 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 any such bank. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor bank, 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. After the Administrative Agent's resignation hereunder, the provisions of this Article and Section 10.05 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 Administrative Agent. With respect to the Loans made by it hereunder, each of the Agents, Agents in its their individual capacity and not as an Agent Agents shall have the same rights and powers as any other Lender and may exercise the same as though it they were not an Agentthe Agents, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Holdings or any Subsidiary or other Affiliate thereof as if it they were not an Agentthe Agents. Each Lender agrees (ia) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder oroutstanding Term Loans, if Revolving Exposures and unused Commitments at the Commitments shall have been terminated, the amount time of its outstanding Loanssuch demand) of any expenses incurred for the benefit of the Lenders in its role as Agentby the Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by one of the Borrowers and (ib) to indemnify and hold harmless each of the Agents and any of its their 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 them in their capacity as Agents 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 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 PROVIDED that no Lender shall be liable to any Agent the Agents for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful wilful misconduct of such Agent the Agents or any of its their directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriateapplicable, 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 Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriateapplicable, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank the Persons named in the heading of Texas, National Association is this Agreement are hereby appointed to act as Administrative Agent, London Agent and Chase is hereby appointed to act as CAF Agent, Canadian Agent on behalf of the Lenders. Each of the Lenders and each assignee of any Lender hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is and, to the extent expressly provided herein, the other Agents are hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, and by the Borrowers with respect to clause (c) below, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. With respect to the Loans made by it hereunder, each 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 the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any of the Borrowers or any of their Subsidiaries or other Affiliates thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that such Agent is required to exercise upon receipt of notice 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 10.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to any of the Borrowers or any of their Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its directors, officers, employees or agents Affiliates in any capacity. No Agent shall be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its or his or her own gross negligence or willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by a Borrower (in which case such Agent shall give written notice to each other Lender), or and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein 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 herewithherewith or therewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth herein or therein, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Each Agent also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for any Borrower), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The Lenders hereby acknowledge that exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it each Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication 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 belowin this paragraph, either any Agent may resign at any time by notifying the Lenders and the BorrowersCompany. Upon any such resignation, the Required Lenders shall have the right right, with the consent of the Company, to appoint a successor Agent acceptable to the Borrowerssuccessor. 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 AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an retiring Agent, and each 66 the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the Agents benefit of such retiring Agent, its sub-agents and their Affiliates may accept deposits from, lend money respective Related Parties in respect of any actions taken or omitted to and generally engage in be taken by any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof them while it was acting as if it were not an Agent. Each Lender agrees (ia) to reimburse the Agents, 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 LoansLoans and available Commitments hereunder) of any expenses incurred for the benefit of the Lenders in its role as Agentby the Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which that shall not have been reimbursed by the Borrowers Company or any other Borrower and (ib) to indemnify and hold harmless each of the Agents Agent and any of its directors, officers, employees or agentsRelated Parties, 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 that may be imposed on, incurred by or asserted against it in its capacity as Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or 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 BorrowersCompany or any other Borrower; provided PROVIDED that no Lender shall be liable to an Agent or any Agent such other indemnified Person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting that are determined to have resulted from the gross negligence or willful misconduct of such Agent Agent, and any of its Related Parties or any of its their respective directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. None of the Lenders identified on the facing page or signature pages of this Agreement or elsewhere herein as a "co-syndication agent" shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and each Issuing Bank hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes the Agents such Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent is hereby expressly authorized any required powers of attorney to execute and enforce any Collateral Document governed by the Lenders laws of such jurisdiction on such Lender’s behalf. Each of the banks serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the CAF same as though it were not an Agent, without hereby and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documents. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting any implied authoritythe generality of the foregoing, (a) the Agents shall not be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, and (c) except as expressly set forth in the CAF Agent all payments of principal of Loan Documents, the Agents shall not have any duty to disclose, and interest on shall not be liable for the Loans and all other amounts due failure to disclose, any information relating to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent Company or any of its directors, officers, employees Subsidiaries that is communicated to or agents obtained by the banks serving as Agents or any of their respective Affiliates in any capacity. No Agent shall be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for 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) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its or his or her own gross negligence or willful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lender, or and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewithwith any Loan Document, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in any Loan Document, covenants (iv) the validity, enforceability, effectiveness or agreements contained genuineness of any Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in this Agreement. The Agents shall not Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be responsible delivered to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lendersapplicable Agent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithPerson. Each of the Agents also may execute rely upon any statement made to it orally or by telephone and all duties hereunder believed by or through agents or employees it to be made by the proper Person, and shall be entitled to rely upon the advice of not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each of the Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The Lenders hereby acknowledge that exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it each Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication of the credit facilities provided for herein as well as activities as an Agent. Subject to the appointment and acceptance of a successor Agent as provided belowin this paragraph, either Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowersCompany. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right right, in consultation with the Company, to appoint a successor successor. In addition, if either Agent acceptable is a Defaulting Lender due to it having had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business or custodian appointed for it, the Required Lenders shall have the right, by notice in writing to the BorrowersCompany and such Agent, to remove such Agent in its capacity as such and, with the consent of the Company (not to be unreasonably withheld and except during the continuance of an Event of Default hereunder, when no consent shall be required), to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 LendersLenders and the Issuing Banks, appoint a successor AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as an Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Agent, in its individual capacity and not as an the retiring Agent shall have be discharged from its duties and obligations under the same rights and powers as any other Lender and may exercise Loan Documents. The fees payable by the Company to a successor Agent shall be the same as though it were not an those payable to its predecessor unless otherwise agreed between the Company and such successor. After such Agent, and each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated’s resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 8.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties 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 respect 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 actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and 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 Agents or any other Lender and 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 or any Loan Document, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (L Brands, Inc.)
The Agents. In order (a) For convenience of administration and to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent, FTX Collateral Agent and FRP Collateral Agent for the Banks under this Agreement and the Security Agreements, and Chase is hereby appointed to act as CAF Agent, on behalf the Documentary Agent for the Banks under this Agreement. None of the LendersAgents shall have any duties or responsibilities with respect hereto except those expressly set forth herein or in the other Loan Documents. Each Bank, and each subsequent holder of the Lenders any Promissory Note by its acceptance thereof, hereby irrevocably appoints and expressly authorizes the Agents Agents, without hereby limiting any implied authority, to take such actions action as the Agents may deem appropriate on its behalf of such Lender or holder and to exercise such powers under this Agreement as are specifically delegated to the Agents such Person by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentBanks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Banks all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent Banks hereunder, and promptly to distribute to each Lender and the CAF Agent Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders Banks to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder or as directed by the Required Banks; and (c) to distribute to each Bank copies of all notices, financial statements and other materials delivered by the Borrowers pursuant to this Agreement as received by the Administrative Agent. Without limiting the generality of the foregoing, the Collateral Agents are hereby expressly authorized to execute any and all documents (including releases) with respect to the collateral under the Security Agreements 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 Agreements. Each of the Agent and the Collateral Agents may exercise any of its duties hereunder by or through their respective agents, officers or employees. In addition, each Bank hereby irrevocably authorizes and directs the Collateral Agents to enter, on behalf of each of them, into the FTX Intercreditor Agreement (in the case of the FTX Collateral Agent) and the Security Agreements, as contemplated pursuant to this Agreement.
(b) None of the Agents or any of its their respective directors, officers, agents or employees or agents shall be liable as such for any action taken or omitted to be taken by any of them except for its or his or her own gross negligence or willful 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 Borrowers or any other party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders Banks or the holders of the Notes for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement Agreement, the Notes or any other Loan Documents or other instruments or agreements. The Agents Administrative Agent may deem and treat the Lender which makes payee of any Loan Promissory Note as the holder of the indebtedness resulting therefrom owner thereof for all purposes hereof until it shall have received notice from the payee of such LenderPromissory Note notice, given as provided herein, of the transfer thereof. The Agents shall thereof in all cases be fully protected in acting, or refraining from acting, in accordance compliance 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. Each of the Agents 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. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents 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. The Lenders hereby acknowledge that the Agents shall be under no 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. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a 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, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an 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 each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunderSection 9.
Appears in 1 contract
Samples: Credit Agreement (Freeport McMoran Resource Partners Limited Partnership)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association each Agent is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Lenders all payments of principal of and interest on the Loans and the LC Disbursements and all other amounts due to the Lenders and the CAF Agent Issuing Lenders hereunder, and promptly to distribute to each Lender and the CAF Agent Issuing Lender its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as received by the Administrative Agent. Neither any Agent or 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 Borrowers any Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the 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 Issuing Lenders. Each of the Agents The Administrative 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 Person or personsPersons. No Agent or Neither the Agents nor any of its their directors, officers, employees or agents shall have any responsibility to the Borrowers any Borrower on account of the failure of or delay in performance or breach by the other Agent any Lender or any Issuing Lender of any of its obligations hereunder or to the other Agent any Lender or any Issuing Lender on account of the failure of or delay in performance or breach by any other LenderAgent, the any other Agent Lender or Issuing Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents The Administrative 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. The Lenders and the Issuing Lenders hereby acknowledge that the Agents Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant 60 to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided below, either the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint from the Lenders a successor Agent acceptable to the Borrowerssuccessor. 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 from the Lenders a successor AgentAdministrative Agent which shall be 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 affiliate of any such bank, which successor shall be acceptable to Viacom (such acceptance not to be unreasonably withheld). Upon the acceptance of any appointment as Administrative Agent hereunder by a successor bank, 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. After the Administrative Agent's resignation hereunder, the provisions of this Article and Section 9.5 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 Administrative Agent. With respect to the Loans made by it them and their LC Exposure hereunder, each of the Agents, Agents in its their individual capacity and not as an Agent Agents shall have the same rights and powers as any other Lender and may exercise the same as though it they were not an AgentAgents, and each of the Agents and their Affiliates affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary of their respective Subsidiaries or other any Affiliate thereof as if it they were not an AgentAgents. Each Lender and Issuing Lender agrees (i) to reimburse the Agents, on demand, Administrative Agent in the amount of its pro rata share (based on its Commitment hereunder Total Facility Percentage or, if after the Commitments date on which the Loans shall have been terminatedpaid in full, the amount of based on its outstanding LoansTotal Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders in its role as or the Issuing Lenders by the Administrative Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Issuing Lenders, which shall not have been reimbursed by the Borrowers or on behalf of any Borrower and (iii) to indemnify and hold harmless each of the Agents Administrative 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 Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement Agreement, to the extent the same shall not have been reimbursed by the Borrowersor on behalf of Viacom; provided provided, that no Lender or Issuing Lender shall be liable to the Administrative Agent or any Agent such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such the Administrative Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Issuing Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender or Issuing 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 Issuing Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender or Issuing 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 or Agreement, any related agreement or any document furnished hereunder or thereunder. Neither the Co-Documentation Agents, the Syndication Agent, the Joint Lead Arrangers nor any managing agent shall have any duties or responsibilities hereunder in its capacity as such.
Appears in 1 contract
Samples: Credit Agreement (Viacom Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and each Issuing Bank hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes the Agents such Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents such Agent by the terms of this Agreement and provisions hereofthe other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent or 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 Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents 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 The Toronto-Dominion Bank and correct and to have been signed or sent by the proper person or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents 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. The Lenders hereby acknowledge that the Agents shall be under no 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. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a 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, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an Agent Chase Manhattan Bank shall have the same rights and powers in its capacity as a Lender hereunder as any other Lender and may exercise the same as though it Toronto Dominion (Texas) Inc. were not an the Administrative Agent and The Chase Manhattan Bank were not the Collateral Agent, and each of the Agents such bank and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers any Credit Party or any Subsidiary subsidiary or Credit Agreement 121 -116- other Affiliate of any thereof as if it were not an Agentsuch Agent hereunder. Each Lender agrees Neither Agent shall have any duties or obligations except those expressly set forth in this Agreement and the other Loan Documents. Without limiting the generality of the foregoing, (ia) neither Agent shall be subject to reimburse any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) neither Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by this Agreement and the Agentsother Loan Documents that such Agent is required to exercise in writing by the Required Lenders, on demand, and (c) except as expressly set forth herein and in the amount of its pro rata share (based on its Commitment hereunder orother Loan Documents, if the Commitments neither Agent shall have been terminatedany duty to disclose, the amount of its outstanding Loans) of any expenses incurred and shall not be liable for the benefit failure to disclose, any information relating to any Credit Party or any 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 their respective subsidiaries that is communicated to or obtained by the Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any 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 bank serving as such Agent or any of its directorsAffiliates in any capacity. Neither Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders or, officersif provided herein, employees with the consent or agentsat the request of the Required Revolving Credit Lenders, the Required Tranche C Term Loan Lenders or the Required Tranche D Term Loan Lenders, or in the absence of its own gross negligence or wilful misconduct. Neither Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower, a Lender or the other Agent, and neither Agent shall 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 the other Loan Documents, (ii) the contents of any certificate, report or other document delivered hereunder or under any of the other Loan Documents or in connection herewith of therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or in any other Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, the other Loan Documents or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article V or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to such Agent. Neither Agent shall, except to the extent expressly instructed by the Required Lenders with respect to collateral security under the Security Documents, be required to initiate or conduct any litigation or collection proceedings hereunder or under any other Loan Document. Credit Agreement 122 -117- Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Lender agrees that Agent also may rely upon any allocation statement made in good faith to it orally or by telephone and believed by it to be made by the Agents proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of expenses any such counsel, accountants or other amounts referred experts. Either Agent may perform any and all of its duties, and exercise its rights and powers, by or through any one or more sub-agents appointed by such Agent. Either 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 such Agent and any such sub-agent, 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 Agent. Subject to the appointment and acceptance of a successor Administrative Agent or Collateral Agent, as the case may be, as provided in this paragraph between this Agreement paragraph, either Agent may resign at any time by notifying the Lenders, each Issuing Bank, the Borrower and the Facility A other Agent (and, in the case of the Collateral Agent, by notifying the Vendors pursuant to the Intercreditor and Collateral Agency Agreement). Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor Administrative Agent, and the Required Lenders and the Required Vendors shall have the right, in consultation with the Borrower, to appoint a successor Collateral Agent. If no successor shall have been so appointed and shall have accepted such appointment within 30 days after such retiring Agent gives notice of its resignation, then such retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent or Collateral Agent, as the case may be, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent or Collateral Agent, as the case may be, by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of such retiring Agent, and such retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The Credit Agreement fees payable by the Borrower to a successor Agent shall be conclusive the same as those payable to its predecessor unless otherwise agreed between the Borrower and binding such successor. After an Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for all purposesits benefit in respect of any actions taken or omitted to be taken by it while it was acting as Administrative Agent or Collateral Agent, as the case may be. Each Lender acknowledges that it has, independently and without reliance upon the Agents Administrative Agent, the Collateral Agent, any Issuing Bank or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents Administrative Agent, the Collateral Agent, any Issuing Bank or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or and the other Loan Documents, any related agreement or any document furnished hereunder or thereunder. Each Lender and each Issuing Bank hereby authorizes and directs the Administrative Agent and the Collateral Agent to execute and deliver the Intercreditor and Collateral Agency Agreement.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably appoints the Agents as its agents and authorizes the Agents to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms hereof and provisions hereofof the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby bank or banks serving as the Agents hereunder shall have the same rights and powers in their capacity as Lenders as any other Lender and may exercise the same as though they were not Agents, and such bank or banks and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if they were not Agents hereunder. The Agents shall not have any duties or obligations except those expressly authorized by set forth herein. Without limiting the Lenders and generality of the CAF Agent, without hereby limiting any implied authority, foregoing (a) the Agents shall not be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Lenders Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the CAF Agent all payments of principal of Agents are required to exercise in writing by the Required Lenders, and interest on (c) except as expressly set forth herein, the Loans Agents shall not have any duty to disclose, and all other amounts due shall not be liable for the failure to disclose, any information communicated to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders Agents by or relating to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent Company or any of its directors, officers, employees or agents Subsidiaries. The Agents shall not be liable as such for any action taken or omitted not taken by any them with the consent or at the request of them except for its the Required Lenders or his the Lenders, as the case may be, or her in the absence of their own gross negligence or willful wilful misconduct. In addition, the Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agents by the Company or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth herein, covenants (iv) the validity, enforceability, effectiveness or agreements contained genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in this AgreementArticle III or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Agents. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document other writing believed by it in good faith them to be genuine and correct and to have been signed or sent by the proper person Person. The Agents also may rely upon any statement made to them orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by them to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the The Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it with respect to all matters arising hereunder them, and shall not be liable for any action taken or suffered in good faith not taken by it them in accordance with the advice of any such counsel, accountants or experts. The Lenders hereby acknowledge that Agents may perform any and all their duties and exercise their rights and powers by or through any one or more sub-agents appointed by the Agents. The Agents and any such sub-agent may perform any and all their duties and exercise their rights and powers through their respective Affiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Affiliates of the Agents shall be under no duty to take and 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 Lenderssuch sub-agent. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the BorrowersCompany. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to with the BorrowersCompany's written consent (which shall not be unreasonably withheld or delayed and shall not be required from the Company 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, with the Company's written consent (which shall not be unreasonably withheld or delayed and shall not be required if an Event of Default has occurred and is continuing), appoint a successor AgentAgent which shall be a bank or an Affiliate thereof, having in each case with a combined capital and surplus net worth of at least $500,000,000 or 1,000,000,000 and an Affiliate of any such bankoffice in New York, New York. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Agent, in its individual capacity and not as an the retiring Agent shall have be discharged from its duties and obligations hereunder. The fees payable by the same rights and powers as any other Lender and may exercise Company to a successor Agent shall be the same as though it were not those payable to its predecessor unless otherwise agreed between the Company and such successor. After an Agent, and each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated's resignation hereunder, the amount provisions of this Article and Section 10.03 shall continue in effect for its outstanding Loans) benefit in respect 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposeswhile it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or Agreement, any related agreement or any document furnished hereunder or thereunder. None of the Arrangers, Co-Syndication Agents or Co-Agents, in its capacity as an arranger, co-syndication agent or co-agent, shall have any duties or responsibilities under this Agreement.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association Credit Suisse First Boston is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the LendersLenders and the Issuing Bank (for purposes of this Article VIII, the Administrative Agent and the Collateral Agent are referred to collectively as the "Agents"). Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee or the Issuing Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Bank all payments of principal of and interest on the Loans Loans, all payments in respect of L/C Disbursements and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and or the CAF Agent Issuing Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by Holdings, the Borrower or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of its the foregoing, the Agents are 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. Neither the Agents nor any of their respective 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 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 Borrowers Borrower or any other Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents, instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents 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. No Agent or Neither the Agents nor any of its their respective directors, officers, employees or agents shall have any responsibility to Holdings, the Borrowers Borrower or any other Loan Party on account of the failure of or delay in performance or breach by the other Agent or any Lender or the Issuing Bank of any of its obligations hereunder or to the other Agent or any Lender or the Issuing Bank on account of the failure of or delay in performance or breach by any other LenderLender or the Issuing Bank or Holdings, the other Agent Borrower or any Borrower other Loan Party of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents 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. The Lenders hereby acknowledge that the Agents neither Agent shall be under no 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. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the BorrowersBorrower. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. 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 AgentAgent which shall be 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 any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, 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. After the Agent's resignation hereunder, the provisions of this Article and Section 10.05 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. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an 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 each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary of the Subsidiaries or other Affiliate thereof as if it were not an Agent. Each Lender agrees (ia) to reimburse the Agents, 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 LoansLoans and available commitments hereunder) of any expenses incurred for the benefit of the Lenders in its role as Agentby the Agents, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which that shall not have been reimbursed by the Borrowers Borrower and (ib) to indemnify and hold harmless each of the Agents 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 that may be imposed on, incurred by or asserted against it in its capacity as Agent or any way of them relating to or arising out of this Agreement or any other Loan Document or 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 BorrowersBorrower or any other Loan Party; provided that no Lender shall be liable to an Agent or any Agent such other indemnified person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting that have resulted from the gross negligence or willful wilful misconduct of such Agent or any of its directors, officers, employees or agents. Each Revolving Credit Lender agrees that any allocation made to reimburse each of the Issuing Bank and its directors, officers, employees and agents, in good faith by each case, to the Agents of expenses or other amounts referred same extent and subject to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding same limitations as provided above for all purposesthe Agents. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Chemical Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the LendersLenders and the Fronting Bank (for purposes of this Article VIII, the Administrative Agent and the Collateral Agent are referred to collectively as the "Agents"). Each of the Lenders and each assignee of any such Lender, hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee or the Fronting Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentFronting Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Fronting Bank (i) all payments of principal of and interest on (A) the Revolving Loans, (B) the HK Offered Rate Facility Loans, (C) only after a Thai Facility Participations Event, the Thai Facility Loans and (D) only after a Thai Offered Rate Facility Participations Event, the Thai Offered Rate Loans, (ii) all payments in respect of L/C Disbursements and (iii) all other amounts due to the Lenders hereunder (other than Thai Facility Loans and the CAF Agent hereunderThai Offered Rate Loans except pursuant to clauses (C) or (D) above), and promptly to distribute to each Lender and or the CAF Agent Fronting Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to IMS and the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder, provided that the Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Event of Default unless the Administrative Agent has received notice from a Lender or a Loan Party referring to this Agreement, describing such Event of Default and stating that such notice is a "notice of an event of default"; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by any Borrower or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of its the foregoing, the Agents are 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. Neither the Agents nor any of their respective 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 wilful misconduct, or be responsible for for, or be required to ascertain or to make any inquiry concerning the accuracy or completeness of, 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 Borrowers IMS or any Subsidiary of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan 77 Documents, instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents 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. No Agent or Neither the Agents nor any of its their respective directors, officers, employees or agents shall have any responsibility to the Borrowers IMS or any Subsidiary on account of the failure of or delay in performance or breach by the other Agent or any Lender or the Fronting Bank of any of its obligations hereunder or to the other Agent or any Lender or the Fronting Bank on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent Fronting Bank or IMS or any Borrower Subsidiary of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents 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. In no event any Agent be obligated to take any action, or omit to take any action, in contravention of any applicable law or regulation. The Lenders hereby acknowledge that the Agents neither Agent shall be under no 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. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a 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, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an 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 each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Credit Agreement (International Manufacturing Services Inc)
The Agents. In order to expedite the transactions contemplated by this AgreementCitibank, Chase Bank of Texas, National Association N.A. is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the LendersLenders and Citibank, N.A. accepts such appointments. Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes the Agents Administrative Agent and the Collateral Agent to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto; provided that the Administrative Agent will not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or Applicable Law, including for the avoidance of doubt, any action that may be in violation of the automatic stay under any debtor relief law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any debtor relief law. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and to promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent it has actual knowledge acquired in connection No Agent or with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by Borrower pursuant to this Agreement as received by it. None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from 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 Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual 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. No Agent or any of its directors, officers, employees or agents Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it 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. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be 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 any such bank; provided that if the retiring Agent shall notify Borrower, the Lenders and the Issuing Bank 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 under the other Loan Documents (except that in case of any collateral security held by the retiring Agent on behalf of the Lenders or the Issuing Bank under any of the Loan Documents, the retiring Agent shall continue to hold such collateral security until such time as a successor Agent is appointed) 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 each Issuing Bank directly, until such time as the Requisite Lenders appoint a successor Agent as provided for above in this Section. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, 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. After an Agent’s resignation hereunder, the provisions of this Article 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 an Agent. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an 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 each of the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Anything herein to the contrary notwithstanding, if at any time the Requisite Lenders determine that the Person serving as Administrative Agent is (without taking into account any provision in the definition of “Defaulting Lender” requiring notice from the Administrative Agent or any other party) a Defaulting Lender agrees pursuant to clause (v) of the definition thereof, the Requisite Lenders (determined after giving effect to Section 9.08) may by notice to Borrower and such Person remove such Person as Administrative Agent and appoint a replacement Administrative Agent hereunder. Such removal will, to the fullest extent permitted by applicable law, be effective on the earlier of (i) the date a replacement Administrative Agent is appointed and (ii) the date 30 days after the giving of such notice by the Requisite Lenders (regardless of whether a replacement Administrative Agent has been appointed). No Person that obtains the benefits of any Collateral pursuant to reimburse a Hedging Agreement and/or Secured Cash Management Agreement shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Agents, on demandCollateral (including the release or impairment of any Collateral) other than in its capacity as a Lender and, in the amount of its pro rata share (based on its Commitment hereunder orsuch case, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 only to the extent expressly provided in the same Loan Documents. Notwithstanding any other provision hereof, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been reimbursed by made with respect to, Secured Obligations arising under Secured Cash Management Agreements or Hedging Agreements unless the Borrowers; provided that no Administrative Agent has received written notice of such Secured Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Person. So long as any Lender shall is a Defaulting Lender, such Lender will not be liable a Cash Management Bank or Hedge Bank with respect to any Agent for any portion of Secured Cash Management Agreement or Hedging Agreement entered into while such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposeswas a Defaulting Lender. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, none of CGMI, MLPFS and Barclays, as Lead Arrangers, nor BANA and Barclays, as Co-Syndication Agents, in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document. To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax. If the IRS or any other Governmental Authority asserts a claim that the Administrative Agent did not properly withhold any tax from any amounts 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 circumstance which rendered the exemption from, or reduction of, withholding tax ineffective), such Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including any interest, additions to tax and penalties, and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due the Administrative Agent under this paragraph. The agreements in this paragraph shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other obligations.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and each Issuing Bank hereby irrevocably appoints each of the Administrative Agent (which appointment, in the case of the Administrative Agent, is of JPMorgan Chase Bank, as successor to Toronto Dominion (Texas) Inc.) and the Collateral Agent as its agent and authorizes the Agents such Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents such Agent by the terms of this Agreement and provisions hereofthe other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent or 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 Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents 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. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents 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. The Lenders hereby acknowledge that the Agents shall be under no 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. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a 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, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an Agent JPMorgan Chase Bank shall have the same rights and powers in its capacity as a Lender hereunder as any other Lender and may exercise the same as though it JPMorgan Chase Bank were not an the Administrative Agent or the Collateral Agent, and each any bank serving in the capacity of the Agents Administrative Agent or Collateral Agent from time to time and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers any Credit Party or any Subsidiary subsidiary or other Affiliate of any thereof as if it were not an Agentsuch Agent hereunder. Each Lender agrees Neither Agent shall have any duties or obligations except those expressly set forth in this Agreement and the other Loan Documents. Without limiting the generality of the foregoing, (ia) neither Agent shall be subject to reimburse any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) neither Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by this Agreement and the Agentsother Loan Documents that such Agent is required to exercise in writing by the Required Lenders, on demand, and (c) except as expressly set forth herein and in the amount of its pro rata share (based on its Commitment hereunder orother Loan Documents, if the Commitments neither Agent shall have been terminatedany duty to disclose, the amount of its outstanding Loans) of any expenses incurred and shall not be liable for the benefit of the Lenders in its role as Agentfailure to disclose, 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 (i) any information relating to indemnify and hold harmless each of the Agents and any Credit Party or 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 respective subsidiaries that is communicated 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 obtained by the Borrowers; provided that no Lender shall be liable to any 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 bank serving as such Agent or any of its directorsAffiliates in any capacity. Neither Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders or, officersif provided herein, employees with the consent or agentsat the request of the Required Lenders of a particular Class, or in the absence of its own gross negligence or wilful misconduct. Neither Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower, a Lender or the other Agent, and neither Agent shall 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 the other Loan Documents, (ii) the contents of any certificate, report or other document delivered hereunder or under any of the other Loan Documents or in connection herewith of therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or in any other Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, the other Loan Documents or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article V or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to such Agent. Neither Agent shall, except to the extent expressly instructed by the Required Lenders with respect to collateral security under the Security Documents, be required to initiate or conduct any litigation or collection proceedings hereunder or under any other Loan Document. Each Lender agrees that Agent shall be entitled to rely upon, and shall not incur any allocation made in good faith 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 Agents proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of expenses any such counsel, accountants or other amounts referred experts. Either Agent may perform any and all of its duties, and exercise its rights and powers, by or through any one or more sub-agents appointed by such Agent. Either 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 such Agent and any such sub-agent, 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 Agent. Subject to the appointment and acceptance of a successor Administrative Agent or Collateral Agent, as the case may be, as provided in this paragraph between this Agreement paragraph, either Agent may resign at any time by notifying the Lenders, each Issuing Bank, the Borrower and the Facility A Credit Agreement other Agent. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor Administrative Agent, and the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor Collateral Agent. If no successor shall have been so appointed and shall have accepted such appointment within 30 days after such retiring Agent gives notice of its resignation, then such retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent or Collateral Agent, as the case may be, which shall be conclusive a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent or Collateral Agent, as the case may be, by a successor, such successor shall succeed to and binding become vested with all the rights, powers, privileges and duties of such retiring Agent, and such retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After an Agent’s resignation hereunder, the provisions of this Article IX and Section 10.03 shall continue in effect for all purposesits benefit in respect of any actions taken or omitted to be taken by it while it was acting as Administrative Agent or Collateral Agent, as the case may be. Each Lender acknowledges that it has, independently and without reliance upon the Agents Administrative Agent, the Collateral Agent, any Issuing Bank or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents Administrative Agent, the Collateral Agent, any Issuing Bank or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or and the other Loan Documents, any related agreement or any document furnished hereunder or thereunder. Anything herein to the contrary notwithstanding, none of the Bookrunner, Lead Arranger, Syndication Agent or Documentation Agents listed on the cover page hereof shall have any duties or responsibilities under this Agreement, except in their capacity, if any, as Agents or Lenders hereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this AgreementCiticorp North America, Chase Bank of Texas, National Association Inc. is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the LendersLenders and Citicorp North America, Inc. accepts such appointments. Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes the Agents Administrative Agent and the Collateral Agent to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and to promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent it has actual knowledge acquired in connection No Agent or with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by Borrower pursuant to this Agreement as received by it. None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from 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 Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual 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. No Agent or any of its directors, officers, employees or agents Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it 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. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after af- ter the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be 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 any such bank. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, 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. After an Agent’s resignation hereunder, the provisions of this Article 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 an Agent. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an 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 each of the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, none of CGMI, as Lead Arranger, nor Bank of America, N.A., CIBC World Markets Corp., Suntrust Bank and UBS Securities LLC, as Co-Syndication Agents in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this AgreementSECTION 8.01. The Agents. Citicorp North America, Chase Bank of Texas, National Association Inc. is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each Lender that holds Loans or has Commitments and each holder of any Related Hedging Obligations and each person holding Overdraft Obligations (in each case, in its capacity as such) hereby irrevocably designates and appoints the Collateral Agent as an agent of such person under this Agreement and each other Loan Document to which the Collateral Agent is a party. Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to any of the Borrowers Loan Parties of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by any of its directors, officers, employees or agents the Loan Parties pursuant to this Agreement as received by such Agent. None of the Agents nor any of their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from 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 Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual 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. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it 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. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersBorrower. Upon any such resignation, the Required Requisite Lenders (with the consent of the Borrower, not to be unreasonably withheld) shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent maymay (with the consent of the Borrower, not to be unreasonably withheld), on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 500.0 million or an Affiliate of any such bank. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, 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. After an Agent’s resignation hereunder, the provisions of this Article 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 an Agent. With respect to the any Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent. In addition, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it any were not an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither CGMI, as Sole Lead Arranger and Sole Bookrunner, nor Citicorp North America, Inc., as Syndication Agent, nor Citicorp Xxxxx Xxxxxxx, Inc., as Documentation Agent, in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 1 contract
Samples: Credit Agreement (Polymer Group Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association CSFB is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the LendersLenders and Issuing Banks (for purposes of this Article VIII, the Administrative Agent and the Collateral Agent are referred to collectively as the "Agents"). Each of the Lenders Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Banks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Banks all payments of principal of and interest on the Loans Loans, all payments in respect of L/C Disbursements and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent or Issuing Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of its the foregoing, the Agents are hereby expressly authorized to execute any and all documents (including releases) with respect to the Collateral and the Guarantee Agreements and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement, the Security Documents and the Guarantee Agreements, and the Agents are hereby expressly authorized to rely on any certificate delivered by the Borrowers as to adverse tax consequences, third party consent requirements, expenses, regulatory consequences or other matters relating to the Collateral and Guarantee Requirement, including any certificate delivered under Section 4.02(h), 5.03(d) or 9.08(b). Neither the Agents nor any of their respective 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 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 Borrowers Borrower or any other Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents, instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents 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. No Agent or Neither the Agents nor any of its their respective directors, officers, employees or agents shall have any responsibility to the Borrowers Borrower or any other Loan Party on account of the failure of or delay in performance or breach by the other Agent or any Lender or Issuing Bank of any of its obligations hereunder or to the other Agent or any Lender or Issuing Bank on account of the failure of or delay in performance or breach by any other Lender, Lender or Issuing Bank or the other Agent Borrower or any Borrower other Loan Party of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents 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. The Lenders hereby acknowledge that the Agents neither Agent shall be under no 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. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the BorrowersBorrower. Upon any such resignation, the Required Lenders Lenders, acting jointly with the Borrower if no Event of Default shall have occurred and be continuing, shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. 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 AgentAgent which shall be 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 any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, 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. After the Agent's resignation hereunder, the provisions of this Article 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. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an 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 each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary of the Subsidiaries or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association (i) GSCP is hereby appointed to act as Administrative Agent the Syndication Agent, and (ii) Chase is hereby appointed to act as CAF Agent, the Administrative Agent and the Collateral Agent on behalf of the LendersLenders and the Fronting Bank (for purposes of this Article VIII, the Syndication Agent, the Administrative Agent and the Collateral Agent are referred to collectively as the "Agents"). Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee or the Fronting Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentFronting Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Fronting Bank all payments of principal of and interest on the Loans Loans, all payments in respect of Letter of Credit Disbursements and all other amounts due to the Lenders and the CAF Agent Fronting Bank hereunder, and promptly to distribute to each Lender and or the CAF Agent Fronting Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by the Administrative Agent. Without limiting the generality of the foregoing, the Agents are 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. In the event that any party other than the Lenders and the Agents shall participate in all or any portion of the Collateral pursuant to the Security Documents, all rights and remedies in respect of such Collateral shall be controlled by the Collateral Agent. The Syndication Agent, without consent of or notice to any party hereto, may assign any and all of its rights or obligations hereunder to any of its Affiliates. As of the Closing Date, all the obligations of the Syndication Agent, shall terminate. Chase Securities Inc. shall have no obligations under this Agreement. None of the Agents nor any of their respective 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 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 Borrowers Borrower or any other Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents 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. No Agent or Neither the Agents nor any of its their respective directors, officers, employees or agents shall have any responsibility to the Borrowers Borrower or any other Loan Party on account of the failure of or delay in performance or breach by the other Agent or any Lender or the Fronting Bank of any of its obligations hereunder or to the other Agent or any Lender or the Fronting Bank on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent Fronting Bank or the Borrower or any Borrower other Loan Party of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents 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. The Lenders hereby acknowledge that none of the Agents shall be under no 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. Subject to the appointment The Lenders further acknowledge and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been agree that 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, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not long as an Agent shall have the same rights and powers as make any determination to be made by it hereunder or under any other Lender and may exercise the same as though it were not an AgentLoan Document in good faith, and each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments such Agent shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders no liability 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 Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount respect 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 no Lender shall be liable determination to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunderperson.
Appears in 1 contract
Samples: Credit Agreement (Volume Services America Holdings Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, The Chase Manhattan Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the LendersLenders and the Issuing Bank and BNY is hereby appointed as Documentation Agent on behalf of the Lenders (the Administrative Agent, the Collateral Agent and the Documentation Agent are referred to collectively as the "Agents"). Each of the Lenders and each assignee of any such Lender, hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee or the Issuing Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Bank all payments of principal of and interest on the Loans Loans, all payments in respect of L/C Disbursements and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and or the CAF Agent Issuing Bank on the due date therefor its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; and (c) to distribute promptly to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by the Administrative Agent. Without limiting the generality of the foregoing, the Agents are 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. Neither the Agents nor any of its their respective 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 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 Borrowers Borrower or any other Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, in the case of any matter requiring the approval of all the Lenders, in accordance with written instructions signed by all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents 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 Person or personsPersons. No Agent or Neither the Agents nor any of its their respective directors, officers, employees or agents shall have any responsibility to the Borrowers Borrower or any other Loan Party on account of the failure of or delay in performance or breach by the other Agent or any Lender or the Issuing Bank of any of its obligations hereunder or to the other Agent or any Lender or the Issuing Bank on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent Issuing Bank or the Borrower or any Borrower other Loan Party of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents 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 reasonable care 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 Lenders hereby acknowledge that the Agents no Agent shall be under no 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. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders and the BorrowersBorrower. Upon any such resignation, the Required Lenders shall have the right to appoint a successor, which successor Agent shall be reasonably acceptable to the BorrowersBorrower. 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, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an 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 each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunder.100
Appears in 1 contract
The Agents. In order to expedite Each Lender hereby irrevocably designates and appoints the transactions contemplated by Agents as the agents of such Lender under this AgreementAgreement and the other Loan Documents, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF each Lender irrevocably authorizes each Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents in such capacity, to take such actions action on its behalf under the provisions of such Lender or holder this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are specifically expressly delegated to the Agents such Agent by the terms of this Agreement and provisions hereofthe other Loan Documents, together with such actions and other powers as are reasonably incidental thereto. Each Lender that holds Term B-1 Loans or has Term B-1 Commitments and each Qualified Counterparty (in each case, in its capacity as such) hereby irrevocably designates and appoints the Collateral Agent as an agent of such Person under this Agreement and each other Loan Document to which the Collateral Agent is a party. In addition, without hereby limiting any implied authority, each Lender hereby expressly authorizes and directs the Collateral Agent to enter into each Loan Document to which it is a party as its agent. Notwithstanding any provision to the contrary elsewhere in this Agreement, no Agent shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against any Agent. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by such Agent. None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from 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 Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual 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. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it 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. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. The Collateral Agent hereby agrees that it holds and will hold all of its right, title and interest in, to and under the Security Documents and the Collateral granted to the Collateral Agent thereunder whether now existing or hereafter arising (all such right, title and interest being hereinafter referred to as the “Collateral Estate”) under and subject to the conditions set forth in this Agreement; and the Collateral Agent further agrees that it will hold such Collateral Estate for the benefit of the Secured Parties, for the enforcement of the payment of all Obligations (subject to the limitations and priorities set forth herein and in the respective Security Documents) and as security for the performance of and compliance with the covenants and conditions of this Agreement and each of the Security Documents. All of the powers, remedies and rights of the Collateral Agent as set forth in this Agreement may be exercised by the Collateral Agent in respect of any Security Document as though set forth in full therein and all of the powers, remedies and rights of the Collateral Agent as set forth in any Security Document may be exercised from time to time as herein and therein provided. Subject to the appointment and acceptance of a successor Agent as provided belowbelow and subject to the next succeeding paragraph with respect to the Collateral Agent, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 500.0 million or an Affiliate of any such bank. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, such successor With respect shall succeed to and become vested with all the Loans made by it rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, each the provisions of the Agents, this Article and Section 10.05 shall continue in effect for its individual capacity and not as an 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 each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage benefit in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, 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) respect 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that while it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information was acting 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 Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunderan Agent.
Appears in 1 contract
Samples: Credit Agreement (Spirit AeroSystems Holdings, Inc.)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Royal Bank of Texas, National Association Canada is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the Lenders. Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent is hereby expressly authorized by the Lenders and the CAF Agenteach Secured Party, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Secured Parties all payments of principal of and interest on the Loans Obligations, all payments and all other amounts due to the Lenders and the CAF Agent Secured Parties hereunder, and promptly to distribute to each Lender and the CAF Agent Secured Party its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by Borrower pursuant to this Agreement as received by such Agent; (d) to enter into the Security Documents on behalf of the Secured Parties; and (e) to claim all Obligations owed to any Secured Party against Borrower in its own name for the purpose of any Security Documents. None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from 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 Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual 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 Person or persons. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it 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. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowersBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Banks, appoint a successor AgentAgent which shall be 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 any such bank. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, 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. After an Agent’s resignation hereunder, the provisions of this Article 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 an Agent. Each appointment under this paragraph shall be subject to the prior written consent of the Borrower (which consent shall not be unreasonably withheld or delayed) so long as no Event of Default then exists. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an 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 each of the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither RBC Capital Markets, as Lead Arranger, nor General Electric Capital Corporation, as Syndication Agent, nor JPMorgan Chase Bank, N.A. nor Bank of Arizona, N.A., as Co-Documentation Agents, in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Banks hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes the Agents each Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Any person serving as an Agent is hereby expressly authorized by hereunder shall have the Lenders same rights and powers in its capacity as a Lender as any other Lender and may exercise the CAF same as though it were not an Agent, without hereby and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with GrafTech, a Borrower, any Subsidiary or any Affiliate thereof as if it were not an Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting any implied authoritythe generality of the foregoing, (a) the Agents shall not be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agents are required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders and as shall be necessary under the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereundercircumstances as provided in Section 9.02), and promptly (c) except as expressly set forth in the Loan Documents, the Agents shall not have any [[NYCORP:3461068v7:3124W: 04/23/2014--12:33 AM]] duty to distribute disclose, and shall not be liable for the failure to each Lender and the CAF Agent its proper share of each payment so received; (a) disclose, any information relating to give notice on behalf of each GrafTech, a Borrower or any of the Lenders other Subsidiaries that is communicated to the Borrowers of or obtained by any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No bank serving as Agent or any of its directors, officers, employees or agents Affiliates in any capacity. The Agents shall not be liable as such for any action taken or omitted not taken by any them with the consent or at the request of them except for its the Required Lenders (or his such other number or her percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of their own gross negligence or willful wilful misconduct. The Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agents by GrafTech, a Borrower or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection herewiththerewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in any Loan Document, covenants (iv) the validity, enforceability, effectiveness or agreements contained genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in this AgreementArticle IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agents. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document other writing believed by it in good faith them to be genuine and correct and to have been signed or sent by the proper person person. The Agents also may rely upon any statement made to them orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by them to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the The Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for a Borrower or GrafTech), independent accountants and other experts selected by it with respect to all matters arising hereunder them, and shall not be liable for any action taken or suffered in good faith not taken by it them in accordance with the advice of any such counsel, accountants or experts. The Lenders hereby acknowledge that Agents may perform any and all their duties and exercise their rights and powers by or through any one or more sub-agents appointed by them. The Agents and any such sub-agent may perform any and all their duties and exercise their rights and powers through their respective Related Parties. The exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it each Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor to an Agent as provided belowin this paragraph, either such Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the Borrowers. Upon any such resignation, the Required Lenders shall have the right right, with, if no Default or Event of Default shall have occurred and be continuing, the consent of the Borrowers (not to be unreasonably withheld or delayed), to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring resigning [[NYCORP:3461068v7:3124W: 04/23/2014--12:33 AM]] Agent gives notice of its resignation, then the retiring resigning Agent may, on behalf of the LendersLenders and the Issuing Banks, appoint a successor AgentAgent which shall be a Lender with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bankLender. Upon the acceptance of any its appointment as Agent hereunder by a successor bankpredecessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsresigning Agent, in its individual capacity and not as an the resigning Agent shall have be discharged from its duties and obligations hereunder. The fees payable by the same rights and powers as any other Lender and may exercise Borrowers to a successor Agent shall be the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money those payable to and generally engage in any kind of business with its predecessor unless otherwise agreed between the Borrowers or and such successor. After any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated’s resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 9.03 shall continue in effect for the benefit of the Lenders in its role as such resigning Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties 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 respect 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 actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement 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 to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Restatement Effective Date. Except with respect to the exercise of setoff rights of any Lender in accordance with Section 9.08 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 Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Agents on behalf of the Secured Parties in accordance with the terms thereof. In the event of a foreclosure by an Agent on any of the Collateral pursuant to a public or private sale or other disposition, an 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 such 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 under this Agreement as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Secured Parties at such sale or other disposition. [[NYCORP:3461068v7:3124W: 04/23/2014--12:33 AM]] In furtherance of the foregoing and not in limitation thereof, no Interest/Exchange Rate Protection Agreement or Commodity Rate Protection Agreement the obligations under which constitute Obligations will create (or be deemed to create) in favor of any Secured Party that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under any Loan Document. By accepting the benefits of the Collateral, each Secured Party that is a party to any such agreement shall be deemed to have appointed the Administrative Agent to serve as administrative agent and collateral agent under the Loan Documents and agreed to be bound by the Loan Documents as a Secured Party thereunder, subject to the limitations set forth in this paragraph. The Agents shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of either Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall either Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral. In case of the pendency of any proceeding with respect to any Loan Party under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan or any LC Disbursement 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 Borrowers or Guarantors) 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, LC Exposure and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the Issuing Banks and the Administrative Agent 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, each Issuing Bank and each other Secured Party 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, the Issuing Banks or the other Secured Parties, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents. The Lenders identified on the cover of this Agreement as the “Co-Syndication Agents”, the entities identified on the cover of this Agreement as the “Joint-Lead Arrangers”, the Lenders identified on the cover of this Agreement as the [[NYCORP:3461068v7:3124W: 04/23/2014--12:33 AM]] “Documentation Agents” and the Arrangers shall have no rights, powers, obligations, liabilities, responsibilities or duties under this Agreement other than, in the case of any such Lenders, those applicable to all Lenders as such. Without limiting the foregoing, such persons shall not have or be deemed to have a fiduciary relationship with any Lender.
Appears in 1 contract
The Agents. In order to expedite Each Lender hereby irrevocably designates and appoints the transactions contemplated by Agents as the agents of such Lender under this AgreementAgreement and the other Loan Documents, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF each Lender irrevocably authorizes each Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents in such capacity, to take such actions action on its behalf under the provisions of such Lender or holder this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are specifically expressly delegated to the Agents such Agent by the terms of this Agreement and provisions hereofthe other Loan Documents, together with such actions and other powers as are reasonably incidental thereto. Each Lender that holds Term B Loans or has Term B Commitments and each Qualified Counterparty (in each case, in its capacity as such) hereby irrevocably designates and appoints the Collateral Agent as an agent of such Person under this Agreement and each other Loan Document to which the Collateral Agent is a party. In addition, without hereby limiting any implied authority, each Lender hereby expressly authorizes and directs the Collateral Agent to enter into the Intercreditor and Subordination Agreement and each other Loan Document to which it is a party as its agent. Notwithstanding any provision to the contrary elsewhere in this Agreement, no Agent shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against any Agent. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to any of the Borrowers of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrowers pursuant to this Agreement as received by such Agent. None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from its or his or her own gross negligence or willful 138 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 Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual 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. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it 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. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. The Collateral Agent hereby agrees that it holds and will hold all of its right, title and interest in, to and under the Security Documents and the Collateral granted to the Collateral Agent thereunder whether now existing or hereafter arising (all such right, title and interest being hereinafter referred to as the "Collateral Estate") under and subject to the conditions set forth in this Agreement; and the Collateral Agent further agrees that it will hold such Collateral Estate for the benefit of the Secured Parties, for the enforcement of the payment of all Obligations (subject to the limitations and priorities set forth herein and in the respective Security Documents) and as security for the performance of and compliance with the covenants and conditions of this Agreement and each of the Security Documents. All of the powers, remedies and rights of the Collateral Agent as set forth in this Agreement may be exercised by the Collateral Agent in respect of any Security Document as though set forth in full therein and all of the powers, remedies and rights of the Collateral Agent as set forth in any Security Document may be exercised from time to time as herein and therein provided. Subject to the appointment and acceptance of a successor Agent as provided belowbelow and subject to the next succeeding paragraph with respect to the Collateral Agent, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the Borrowers. Upon any such resignation, the Required Requisite Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If 139 no successor shall have been so appointed by the Required Requisite 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 LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 500.0 million or an Affiliate of any such bank. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, such successor With respect shall succeed to and become vested with all the Loans made by it rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent's resignation hereunder, each the provisions of the Agents, this Article and Section 10.05 shall continue in effect for its individual capacity and not as an 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 each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage benefit in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, 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) respect 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that while it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information was acting 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 Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunderan Agent.
Appears in 1 contract
Samples: Credit Agreement (Spirit AeroSystems Holdings, Inc.)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent (a) Certain Duties and Chase is hereby appointed to act as CAF Agent, on behalf Responsibilities of the Lenders. Each of the Lenders hereby irrevocably authorizes Agents:
(1) the Agents undertake to take perform such actions on behalf of duties and only such Lender or holder and to exercise such powers duties as are specifically delegated to set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against any Agent. No Agent shall be under any fiduciary duty or other obligation towards, or have any relationship of agency or trust, for or with any person other than the Agents by the terms and provisions hereof, together with such actions and powers as are reasonably incidental theretoIssuer. The Administrative Paying Agent is hereby expressly authorized by shall not be required to make any payments to any holder of a Note if under any laws or regulations affecting the Lenders and the CAF Paying Agent, without hereby limiting such payment is not permitted;
(2) no provision of this Indenture shall require an Agent to take any implied authority, (a) action or fail to receive on behalf take any action that may cause it to expend or risk its own funds or otherwise incur financial liability in the performance of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent or any of its directors, officers, employees duties hereunder 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 in 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 Borrowers exercise of any of its rights or powers, if it believes in its absolute discretion that repayment of such funds or adequate indemnity against such risk or liability is not assured to it;
(3) the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem rely and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, acting or refraining from actingacting upon any resolution, in accordance with written instructions signed by the Required Lenders andcertificate, except as otherwise specifically provided hereinstatement, such instructions and any action instrument, opinion, report, notice, request, direction, consent, order, bond, note, other evidence of indebtedness or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument other paper or document believed by it in good faith to be genuine and correct and to have been signed or sent presented by the proper person party or persons. No Agent or parties including but not limited to any of its directors, officers, employees or agents shall have any responsibility instruction provided to the Borrowers on account of the failure of or delay in performance or breach it by the other Agent or any Lender of any of its obligations hereunder or to Issuer or, as the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lendercase may be, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithTrustee. Each Agent may refrain, without liability, from acting under any instructions that it determines, in its sole discretion, are equivocal, unclear or conflicting. Except as ordered by a court of competent jurisdiction or as required by law, the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon treat the advice Holder of legal counsel selected by it with respect to any Note as the absolute owner thereof for all matters arising hereunder and shall not be liable for required to obtain any proof thereof or as to the identity of the bearer or holder;
(4) the Agents may consult with counsel and the written advice (including by email) of such counsel and any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken taken, suffered or suffered omitted by it hereunder in good faith and in reliance thereon;
(5) The rights, powers, duties and obligations and actions of each Agent under this Indenture are several and not joint or joint and several;
(6) The Issuer and the Agents acknowledge and agree that in the event of a Default or Event of Default, the Trustee may, by it notice in writing to the Issuer and the Agents, require that the Agents act as agents of, and take instructions exclusively from, the Trustee. Prior to receiving such written notice from the Trustee, the Agents shall be the agents of the Issuer and need have no concern for the interests of the Holders;
(7) Any obligation the Agents may have to publish a notice to Holders of Global Notes on behalf of the Issuer will be met upon delivery of the notice to Euroclear and/or Clearstream, as applicable, if and so long as any Notes are represented by one or more Global Notes and ownership of book-entry interests therein are shown on the records of Euroclear or Clearstream, as applicable;
(8) In the event that instructions given to any Agent are not reasonably clear, then such Agent shall be entitled to seek clarification from the Issuer by written request promptly and in any event within one Business Day of receipt by such Agent of such instructions. If an Agent has sought clarification in accordance with this clause (8), then such Agent shall be entitled to take no action until such clarification is provided, and shall not incur any liability for not taking any action pending receipt of such clarification;
(9) The Issuer hereby authorizes and directs the Paying Agent to make from funds so paid to the Paying Agent payment of all amounts due on the Notes in accordance with the advice terms of such counselthe Notes and this Indenture. No Agent shall be required to make any payment under this Indenture unless and until it has received the full amount to be paid in accordance with the terms of this Indenture. To the extent that an Agent has made a payment for which it did not receive the full amount, the Issuer will reimburse the Agent the full amount of any shortfall. If any payment provided hereunder is made late but otherwise in accordance with the provisions hereof, the Paying Agent shall nevertheless make payments in respect of the Notes as aforesaid following receipt by the Paying Agent of the necessary funds;
(10) The Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to act solely as agents of the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders Issuer and shall have accepted no fiduciary or other obligation towards, or have any relationship of agency or trust, for or with any Person other than the Issuer, except as expressly stated elsewhere in this Indenture;
(11) The Issuer shall notify each Agent in the event that it determines that any payment to be made by an Agent under the Notes is a payment which could be subject to FATCA Withholding if such appointment within 30 days after payment were made to a recipient that is generally unable to receive payments free from FATCA Withholding, and the retiring Agent gives notice extent to which the relevant payment is so treated; provided, however, that the Issuer’s obligation under this clause (11) shall apply only to the extent that such payments are so treated by virtue of characteristics of the Issuer, the Notes, or both;
(12) In the event that the Issuer determines in its resignationsole discretion that deduction or withholding for or on account of any Tax will be required by Applicable Law in connection with any payment due to any of the Agents on any Notes, then the retiring Agent may, on behalf Issuer will be entitled to redirect or reorganize any such payment in any way that it sees fit in order that the payment may be made without such deduction or withholding; provided that any such redirected or reorganized payment is made through a recognized institution of international standing and otherwise made in accordance with this Indenture and the Lenders, appoint a successor Agent, having a combined capital Applicable Law. The Issuer will promptly notify the Agents and surplus of at least $500,000,000 or an Affiliate the Trustee of any such bankredirection or reorganization. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an 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 each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 To the extent the same Trustee or the Paying Agent is required to withhold or deduct any amount for or on account of any Tax, the Issuer shall not have been reimbursed by give notice thereof to the Borrowers; provided that no Lender shall be liable to any Paying Agent for any portion and the Trustee as soon as it becomes aware of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from requirement and shall give to the gross negligence or willful misconduct of Paying Agent and Trustee such information as the Paying Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred Trustee requires to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that enable it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking such deduction or not taking action under or based upon withholding;
(13) For the purposes of this Agreement or any related agreement or any document furnished hereunder or thereunder.Section 7.13(a), the following definitions apply:
Appears in 1 contract
Samples: Indenture (Avis Budget Group, Inc.)
The Agents. In order to expedite the transactions contemplated by this AgreementCiticorp North America, Chase Bank of Texas, National Association Inc. is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the First Lien Lenders and the Term C Lenders. Each of the Lenders and each assignee of any such Lender, hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to any of the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by such Agent. None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall be liable to the Lenders as such for any action taken or omitted by any of them except for to the extent finally judicially determined to have resulted from 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 Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite First Lien Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual 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. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it 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. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite First Lien Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersBorrower (it being understood that Citicorp North America Inc. may resign from its role as Agent for the First Lien Lenders or as Agent for the Term C Lenders, or both). Upon any such resignation, the Required Requisite First Lien Lenders shall have the right to appoint a successor successor, except that upon any resignation of an Agent acceptable for the Term C Lenders, the Requisite Lenders shall have the right to the Borrowersappoint a successor. If no successor shall have been so appointed by the Required Requisite First Lien Lenders or the Requisite Lenders, as applicable, 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 LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 500.0 million or an Affiliate of any such bank. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, 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. After an Agent’s resignation hereunder, the provisions of this Article 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 an Agent. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an 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 each of the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither of SSBI or DBSI, each as a Joint Lead Arranger, in such capacity, nor DBSI, as Syndication Agent, or JPMorgan, as Documentation Agent, or SunTrust Bank, as Co-Documentation Agent, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association each Agent is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Lenders all payments of principal of and interest on the Loans and the LC Disbursements and all other amounts due to the Lenders and the CAF Agent Issuing Lenders hereunder, and promptly to distribute to each Lender and the CAF Agent Issuing Lender its proper share of each payment so received; , (ab) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as received by the Administrative Agent. Neither any Agent or 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 Borrowers any Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder None of the indebtedness resulting therefrom for all purposes hereof until it Agents or the Borrowers shall have received notice from such be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing, and no provision in the Loan Documents and no course of dealing between the parties hereto shall be deemed to create any fiduciary duty owing to any Agent, any Lender, given as provided hereinany Borrower or any Subsidiary, or any of the transfer thereoftheir respective Affiliates, by any party hereto. The Agents Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the 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 Issuing Lenders. Each of the Agents The Administrative 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 Person or personsPersons. No Agent or Neither the Agents nor any of its their directors, officers, employees or agents shall have any responsibility to the Borrowers any Borrower on account of the failure of or delay in performance or breach by the other Agent any Lender or any Issuing Lender of any of its obligations hereunder or to the other Agent any Lender or any Issuing Lender on account of the failure of or delay in performance or breach by any other LenderAgent, the any other Agent Lender or Issuing Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents The Administrative 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. The Lenders and the Issuing Lenders hereby acknowledge that the Agents Administrative Agent shall be under no 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. Subject to the appointment and acceptance of a successor Administrative Agent as provided below, either the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint from the Lenders a successor Agent acceptable to the Borrowerssuccessor. 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 from the Lenders a successor AgentAdministrative Agent which shall be 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 affiliate of any such bank, which successor shall be acceptable to ViacomCBS (such acceptance not to be unreasonably withheld). Upon the acceptance of any appointment as Administrative Agent hereunder by a successor bank, 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. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.5 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 Administrative Agent. With respect to the Loans made by it them and their LC Exposure hereunder, each of the Agents, Agents in its their individual capacity and not as an Agent Agents shall have the same rights and powers as any other Lender and may exercise the same as though it they were not an AgentAgents, and each of the Agents and their Affiliates affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary of their respective Subsidiaries or other any Affiliate thereof as if it they were not an AgentAgents. Each Lender and Issuing Lender agrees (i) to reimburse the Agents, on demand, Administrative Agent in the amount of its pro rata share (based on its Commitment hereunder Total Facility Percentage or, if after the Commitments date on which the Loans shall have been terminatedpaid in full, the amount of based on its outstanding LoansTotal Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders in its role as or the Issuing Lenders by the Administrative Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Issuing Lenders, which shall not have been reimbursed by the Borrowers or on behalf of any Borrower and (iii) to indemnify and hold harmless each of the Agents Administrative 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 Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement Agreement, to the extent the same shall not have been reimbursed by the Borrowersor on behalf of ViacomCBS; provided provided, that no Lender or Issuing Lender shall be liable to the Administrative Agent or any Agent such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such the Administrative Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Issuing Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender or Issuing 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 Issuing Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender or Issuing 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 or Agreement, any related agreement or any document furnished hereunder or thereunder. None of the Documentation Agents, the Syndication Agents, the Joint Lead Arrangers, the Joint Bookrunners or any managing agent shall have any duties, liabilities or responsibilities hereunder in its capacity as such.
Appears in 1 contract
Samples: Credit Agreement (ViacomCBS Inc.)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and each Issuing Bank hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes the Agents such Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent is hereby expressly authorized any required powers of attorney to execute and enforce any Collateral Document governed by the Lenders laws of such jurisdiction on such Lender’s behalf. Each of the banks serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the CAF same as though it were not an Agent, without hereby and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documents. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting any implied authoritythe generality of the foregoing, (a) the Agents shall not be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the applicable 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 8.02) or, in the case of the Collateral Documents, the Required Secured Parties, and (c) except as expressly set forth in the CAF Agent all payments of principal of Loan Documents, the Agents shall not have any duty to disclose, and interest on shall not be liable for the Loans and all other amounts due failure to disclose, any information relating to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent Company or any of its directors, officers, employees Subsidiaries that is communicated to or agents obtained by the banks serving as Agents or any of their respective Affiliates in any capacity. No [[NYCORP:3477056v9:3104W: 07/18/2014--12:20 AM]] Agent shall be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for 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) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its or his or her own gross negligence or willful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lender, or and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewithwith any Loan Document, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in any Loan Document, covenants (iv) the validity, enforceability, effectiveness or agreements contained genuineness of any Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in this Agreement. The Agents shall not Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be responsible delivered to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lendersapplicable Agent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithPerson. Each of the Agents also may execute rely upon any statement made to it orally or by telephone and all duties hereunder believed by or through agents or employees it to be made by the proper Person, and shall be entitled to rely upon the advice of not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Agents may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each of the Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The Lenders hereby acknowledge that exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it each Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication of the credit facilities provided for herein as well as activities as an Agent. Subject to the appointment and acceptance of a successor Agent as provided belowin this paragraph, either Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowersCompany. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right right, in consultation with the Company, to appoint a successor successor. In addition, if either Agent acceptable is a Defaulting Lender due to it having had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business or custodian appointed for it, the Required Lenders shall have the right, by notice in writing to the BorrowersCompany and such Agent, to remove such Agent in its capacity as such and, with the consent of the Company (not to be unreasonably withheld and except during the continuance of an Event of Default hereunder, when no [[NYCORP:3477056v9:3104W: 07/18/2014--12:20 AM]] consent shall be required), to appoint a successor. If no successor shall have been so appointed by the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) 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 LendersLenders and the Issuing Banks, appoint a successor AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as an Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Agent, in its individual capacity and not as an the retiring Agent shall have be discharged from its duties and obligations under the same rights and powers as any other Lender and may exercise Loan Documents. The fees payable by the Company to a successor Agent shall be the same as though it were not an those payable to its predecessor unless otherwise agreed between the Company and such successor. After such Agent, and each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated’s resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 8.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Agent, including counsel fees its sub‑agents 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 (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties 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 respect 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 actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any Loan Document, any related agreement or any document furnished hereunder or thereunder. The Joint Lead Arrangers and Joint Bookrunners, the Co-Syndication Agents and the Co-Documentation Agents (each as identified on the cover page of this Agreement), in their capacities as such, shall have no rights, powers, duties, liabilities, fiduciary relationships or obligations under any Loan Document or any of the other documents related hereto. Each of the Lenders hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and the provisions thereof authorizing the Required Secured Parties to approve amendments or modifications thereto or waivers thereof, and to control remedies thereunder, and (b) irrevocably authorizes the Collateral Agent to release any Lien on any Collateral in accordance with the Collateral Documents. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into an Intercreditor Agreement if Indebtedness is incurred that is secured by Liens contemplated by clause (g) of Section 5.08 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Intercreditor Agreement.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (L Brands, Inc.)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association each Agent is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as received by the Administrative Agent. NY nv-6billion -credit.htm i Neither any Agent or 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 Borrowers any Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder None of the indebtedness resulting therefrom for all purposes hereof until it Agents or the Borrowers shall have received notice from such be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing, and no provision in the Loan Documents and no course of dealing between the parties hereto shall be deemed to create any fiduciary duty owing to any Agent, any Lender, given as provided hereinany Borrower or any Subsidiary, or any of the transfer thereoftheir respective Affiliates, by any party hereto. The Agents Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents The Administrative 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 Person or personsPersons. No Agent or Neither the Agents nor any of its their directors, officers, employees or agents shall have any responsibility to the Borrowers any Borrower on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other LenderAgent, the any other Agent Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents The Administrative 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. The Lenders hereby acknowledge that the Agents Administrative Agent shall be under no 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. Subject to the appointment and acceptance of a successor Administrative Agent as provided below, either the Administrative Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint from the Lenders a successor Agent acceptable to the Borrowerssuccessor. 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 from the Lenders a successor AgentAdministrative Agent which shall be 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 affiliate of any such bank, which successor shall be acceptable to Viacom (such acceptance not to be unreasonably withheld). Upon the acceptance of any appointment as Administrative Agent hereunder by a successor bank, 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. After the Administrative Agent’s resignation hereunder, the NY nv-6billion -credit.htm i provisions of this Article and Section 9.5 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 Administrative Agent. With respect to the Loans made by it hereunderthem, each of the Agents, Agents in its their individual capacity and not as an Agent Agents shall have the same rights and powers as any other Lender and may exercise the same as though it they were not an AgentAgents, and each of the Agents and their Affiliates affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary of their respective Subsidiaries or other any Affiliate thereof as if it they were not an AgentAgents. Each Lender agrees (i) to reimburse the Agents, on demand, Administrative Agent in the amount of its pro rata share (based on its Commitment hereunder Total Facility Percentage or, if after the Commitments date on which the Loans shall have been terminatedpaid in full, the amount of based on its outstanding LoansTotal Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders in its role as by the Administrative 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 Borrowers or on behalf of any Borrower and (iii) to indemnify and hold harmless each of the Agents Administrative 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 Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement Agreement, to the extent the same shall not have been reimbursed by the Borrowersor on behalf of Viacom; provided provided, that no Lender shall be liable to the Administrative Agent or any Agent such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such the Administrative Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents 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 or Agreement, any related agreement or any document furnished hereunder or thereunder. None of the Co-Documentation Agents, the Syndication Agent, the Joint Lead Arrangers, the Joint Bookrunners or any managing agent shall have any duties or responsibilities hereunder in its capacity as such.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Banks hereby irrevocably appoints each of the Agents as its agent and authorizes the Agents to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents each such Agent, respectively, by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each bank serving as an Agent is hereby expressly authorized by hereunder shall have the Lenders same rights and powers in its capacity as a Lender as any other Lender and may exercise the CAF same as though it were not an Agent, without hereby and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent hereunder. No Agent shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting any implied authoritythe generality of the foregoing, (a) an Agent shall not be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) an 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 such 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 (c) except as expressly set forth in the CAF Loan Documents, an Agent all payments of principal of shall not have any duty to disclose, and interest on shall not be liable for the Loans and all other amounts due failure to disclose, any information relating to the Lenders and Company or any Subsidiary that is communicated to or obtained by the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No bank serving as an Agent or any of its directors, officers, employees or agents Affiliates in any capacity. An Agent shall not be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the 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 or his or her own gross negligence or willful misconduct. An Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by a Borrower or a Lender, or and an Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection herewiththerewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in any Loan Document, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Each Agent also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. Each Agent and any such subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The Lenders hereby acknowledge that exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it (i) each Agent and (ii) any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication 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 belowin this paragraph, either an Agent may resign at any time by notifying the Lenders Lenders, the other Agents, the Issuing Banks and the BorrowersCompany. Upon any such resignation, the Required Lenders shall have the right right, in consultation with the Company, to appoint a successor Agent acceptable to the Borrowerssuccessor. 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 such retiring Agent may, on behalf of the LendersLenders and the Issuing Banks, appoint a successor AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or Toronto, Ontario, as applicable, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Agent, in its individual capacity and not as an such retiring Agent shall have be discharged from its duties and obligations hereunder. The fees payable by the same rights and powers as any other Lender and may exercise Company to a successor Agent shall be the same as though it were not those payable to its predecessor unless otherwise agreed between the Company and such successor. After an Agent, and each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated's resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 9.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties 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 respect 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 actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. None of the rights or obligations of any Agent under any Loan Document may be amended, supplemented or otherwise modified without the prior written consent of such Agent and the Required Lenders.
Appears in 1 contract
Samples: Credit Agreement (Great Atlantic & Pacific Tea Co Inc)
The Agents. In order to expedite the transactions contemplated by this AgreementCitibank, Chase Bank of Texas, National Association N.A. is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the LendersLenders and Citibank, N.A. accepts such appointments. Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes the Agents Administrative Agent and the Collateral Agent to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto; provided that the Administrative Agent will not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or Applicable Law, including for the avoidance of doubt, any action that may be in violation of the automatic stay under any debtor relief law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any debtor relief law. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and to promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent it has actual knowledge acquired in connection No Agent or with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by Borrower pursuant to this Agreement as received by it. None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from 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 Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual 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. No Agent or any of its directors, officers, employees or agents Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it 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. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be 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 any such bank; provided that if the retiring Agent shall notify Borrower, the Lenders and the Issuing Bank 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 under the other Loan Documents (except that in case of any collateral security held by the retiring Agent on behalf of the Lenders or the Issuing Bank under any of the Loan Documents, the retiring Agent shall continue to hold such collateral security until such time as a successor Agent is appointed) 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 each Issuing Bank directly, until such time as the Requisite Lenders appoint a successor Agent as provided for above in this Section. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, 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. After an Agent’s resignation hereunder, the provisions of this Article 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 an Agent. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an 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 each of the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Anything herein to the contrary notwithstanding, if at any time the Requisite Lenders determine that the Person serving as Administrative Agent is (without taking into account any provision in the definition of “Defaulting Lender” requiring notice from the Administrative Agent or any other party) a Defaulting Lender agrees pursuant to clause (v) of the definition thereof, the Requisite Lenders (determined after giving effect to Section 9.08) may by notice to Borrower and such Person remove such Person as Administrative Agent and appoint a replacement Administrative Agent hereunder. Such removal will, to the fullest extent permitted by applicable law, be effective on the earlier of (i) the date a replacement Administrative Agent is appointed and (ii) the date 30 days after the giving of such notice by the Requisite Lenders (regardless of whether a replacement Administrative Agent has been appointed). No Person that obtains the benefits of any Collateral pursuant to reimburse a Hedging Agreement and/or Secured Cash Management Agreement shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Agents, on demandCollateral (including the release or impairment of any Collateral) other than in its capacity as a Lender and, in the amount of its pro rata share (based on its Commitment hereunder orsuch case, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 only to the extent expressly provided in the same Loan Documents. Notwithstanding any other provision hereof, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been reimbursed by made with respect to, Secured Obligations arising under Secured Cash Management Agreements or Hedging Agreements unless the Borrowers; provided that no Administrative Agent has received written notice of such Secured Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Person. So long as any Lender shall is a Defaulting Lender, such Lender will not be liable a Cash Management Bank or Hedge Bank with respect to any Agent for any portion of Secured Cash Management Agreement or Hedging Agreement entered into while such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposeswas a Defaulting Lender. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, none of CGMI BANA, Barclays, GS, and JPM, as Joint Lead Arrangers, Citi as Syndication Agent nor Citi, BANA, Barclays, GS, and JPM, as Co-Documentation Agents, in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document. To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax. If the IRS or any other Governmental Authority asserts a claim that the Administrative Agent did not properly withhold any tax from any amounts 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 circumstance which rendered the exemption from, or reduction of, withholding tax ineffective), such Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including any interest, additions to tax and penalties, and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due the Administrative Agent under this paragraph. The agreements in this paragraph shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other obligations.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably appoints each of the Co-Administrative Agents and the Paying Agent as its agent (each, an “Agent”, and together, the “Agents”) and authorizes the Agents to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Each of the banks serving as an Agent is hereby expressly authorized by hereunder shall have the Lenders same rights and powers in its respective capacity as a Lender or Applicable Issuing Party as any other Lender and may exercise the CAF same as though it were not an Agent, without hereby and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth herein. Without limiting any implied authoritythe generality of the foregoing, (a) the Agents shall not be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default or Event or Default has occurred and is continuing, (b) the Lenders Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the CAF Agent all payments of principal of Agents are required to exercise in writing by the Required Lenders, and interest on (c) except as expressly set forth herein, the Loans Agents shall not have any duty to disclose, and all other amounts due shall not be liable for the failure to disclose, any information relating to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent Borrower or any of its directors, officers, employees Subsidiaries that is communicated to or agents obtained by the banks serving as Agents or any of their Affiliates in any capacity. The Agents shall not be liable as such for any action taken or omitted not taken by any them with the consent or at the request of them except for its the Required Lenders or his all the Lenders, as the case may be, or her in the absence of their own gross negligence or willful misconduct. The Agents shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Agents by the Borrower or a Lender, or and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth herein, covenants (iv) the validity, enforceability, effectiveness or agreements contained genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in this AgreementArticle IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the relevant Agent or Agents. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document other writing reasonably believed by it in good faith them to be genuine and correct and to have been signed or sent by the proper person Person. The Agents may rely upon any statement made to them orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and reasonably believed by them to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the The Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it with respect to all matters arising hereunder them and shall not be liable for any action taken or suffered in good faith not taken by it them in accordance with the advice of any such counsel, accountants or experts. The Lenders hereby acknowledge that Agents may perform any and all their duties and exercise their rights and powers by or through any one or more sub-agents appointed by the Agents. The Agents or any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Agents and any such sub-agent, and shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant to their respective activities in connection with the provisions syndication of this Agreement unless it shall be requested in writing to do so by the Required Lenderscredit facilities provided for herein as well as activities as the Agents. Subject to the appointment and acceptance of a successor Agent or Agents as provided belowin this paragraph, either Agent each of the Agents may resign at any time by notifying the Lenders and the BorrowersBorrower. Upon any such resignation, the Required Lenders shall have the right right, with the written consent of the Borrower so long as no Event of Default exists, to appoint a successor Agent acceptable to the Borrowersor successors. If no successor or successors shall have been so appointed by the Required Lenders with the written consent of the Borrower (when required) and shall have accepted such appointment within 30 days after the retiring Agent or Agents gives notice of its or their resignation, then the retiring Agent or Agents may, on behalf of the Lenders, appoint a successor AgentAgent or Agents, each of which shall be a bank with an office in New York, New York and having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any its appointment as an Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Agent, in its individual capacity and not as an the retiring Agent shall have be discharged from its respective duties and obligations hereunder. The fees payable by the same rights and powers as Borrower to any other Lender and may exercise successor Agent shall be the same as though it were not an those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After any Agent, and each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated’s resignation hereunder, the amount provisions of this Article and Section 9.03 shall continue in effect for its outstanding Loans) benefit in respect 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposeswhile it was acting as an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or Agreement, any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Five Year Credit Agreement (Genworth Financial Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrowers pursuant to this Agreement as received by the Administrative Agent. No Agent or 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 Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents 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. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents 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. The Lenders hereby acknowledge that the Agents shall be under no 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. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a 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, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, 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. After any 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 Agent. With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an 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 each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (iii) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A B Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association each Agent is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Lenders all payments of principal of and interest on the Loans and the LC Disbursements and all other amounts due to the Lenders and the CAF Agent Issuing Lenders hereunder, and promptly to distribute to each Lender and the CAF Agent Issuing Lender its proper share of each payment so received; , (ab) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as received by the Administrative Agent. Neither any Agent or 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 Borrowers any Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder None of the indebtedness resulting therefrom for all purposes hereof until it Agents or the Borrowers shall have received notice from such be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing, and no provision in the Loan Documents and no course of dealing between the parties hereto shall be deemed to create any fiduciary duty owing to any Agent, any Lender, given as provided hereinany Borrower or any Subsidiary, or any of the transfer thereoftheir respective Affiliates, by any party hereto. The Agents Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the 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 Issuing Lenders. Each of the Agents The Administrative 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 Person or personsPersons. No Agent or Neither the Agents nor any of its their directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender Borrower on account of the failure of or delay in performance or breach by any Lender or Issuing Lender of any of its obligations hereunder or to any Lender or Issuing Lender on account of the failure of or delay in performance or breach [[3890129]] by any other LenderAgent, the any other Agent Lender or Issuing Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents The Administrative 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. The Lenders and the Issuing Lenders hereby acknowledge that the Agents Administrative Agent shall be under no 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. Subject to the appointment and acceptance of a successor Administrative Agent as provided below, either the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint from the Lenders a successor Agent acceptable to the Borrowerssuccessor. 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 from the Lenders a successor AgentAdministrative Agent which shall be 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 affiliate of any such bank, which successor shall be acceptable to Viacom (such acceptance not to be unreasonably withheld). Upon the acceptance of any appointment as Administrative Agent hereunder by a successor bank, 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. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.5 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 Administrative Agent. With respect to the Loans made by it them and their LC Exposure hereunder, each of the Agents, Agents in its their individual capacity and not as an Agent Agents shall have the same rights and powers as any other Lender and may exercise the same as though it they were not an AgentAgents, and each of the Agents and their Affiliates affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary of their respective Subsidiaries or other any Affiliate thereof as if it they were not an AgentAgents. Each Lender and Issuing Lender agrees (i) to reimburse the Agents, on demand, Administrative Agent in the amount of its pro rata share (based on its Commitment hereunder Total Facility Percentage or, if after the Commitments date on which the Loans shall have been terminatedpaid in full, the amount of based on its outstanding LoansTotal Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders in its role as or the Issuing Lenders by the Administrative Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Issuing Lenders, which shall not have been reimbursed by the Borrowers or on behalf of any Borrower and (iii) to indemnify and hold harmless each of the Agents Administrative Agent and any of its directors, officers, employees or agents, on demand, [[3890129]] 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 Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement Agreement, to the extent the same shall not have been reimbursed by the Borrowersor on behalf of Viacom; provided provided, that no Lender or Issuing Lender shall be liable to the Administrative Agent or any Agent such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such the Administrative Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Issuing Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender or Issuing 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 Issuing Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender or Issuing 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 or Agreement, any related agreement or any document furnished hereunder or thereunder. None of the Documentation Agents, the Syndication Agents, the Joint Lead Arrangers, the Joint Bookrunners or any managing agent shall have any duties, liabilities or responsibilities hereunder in its capacity as such.
Appears in 1 contract
Samples: Credit Agreement (Viacom Inc.)
The Agents. In order Each Lender and each of the other Guaranteed Creditors (including each Guaranteed Creditor that is not or will not become a party to expedite the transactions contemplated by this Agreement) by its acceptance of the benefits of this Agreement and the respective Security Documents, Chase Bank of Texashereby appoints Citicorp North America, National Association is hereby appointed Inc. to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the LendersLenders and to act as Collateral Agent on behalf of the Guaranteed Creditors. Each of the Lenders Lenders, each assignee of any such Lender and each other Guaranteed Creditor hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or holder assignee or such other Guaranteed Creditor and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent is hereby expressly authorized by the Lenders and the CAF Agenteach other Guaranteed Creditor, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Canadian Parent or any Borrower of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No Agent with its agency hereunder; (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Canadian Parent or any Borrower pursuant to this Agreement as received by such Agent, (d) to enter into the Security Documents on behalf of the Lenders and each other Guaranteed Creditor and (e) to claim all Obligations owed to any Lender or any other Guaranteed Creditor against each Borrower in its own name for the purpose of any Security Documents. Each Lender (acting for itself and on behalf of each of its directorsLender Affiliates which is or becomes a Guaranteed Creditor from time to time) and each of the other Guaranteed Creditors confirms the appointment and designation of the Collateral Agent (or any successor thereto) as the person holding the power of attorney (“fondé de pouvoir”) within the meaning of Article 2692 of the Civil Code of Québec for the purposes of the hypothecary security under each deed of hypothec to be granted by each Qualified Non-U.S. Loan Party under the laws of the Province of Québec and, officersin such capacity, employees the Collateral Agent shall hold the hypothecs granted under the laws of the Province of Québec as such fondé de pouvoir in the exercise of the rights conferred thereunder. The execution by the Collateral Agent, as such fondé de pouvoir prior to the date hereof of any deed creating or agents evidencing any such hypothec is hereby ratified and confirmed. Notwithstanding the provisions of Section 32 of the Act respecting the special powers of legal persons (Québec), the Collateral Agent may acquire and be the holder of any of the debentures secured by any such hypothec. Each future Lender and each of the other Guaranteed Creditors that becomes party to this Agreement, by becoming a party to this Agreement, shall be deemed to have ratified and confirmed (for itself and, in the case of each Lender, on behalf of each of its Lender Affiliates that is or becomes a Guaranteed Creditor from time to time) the appointment of the Collateral Agent as fondé de pouvoir. None of the Agents nor any of their Related Parties shall be liable to the Guaranteed Creditors as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from 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 Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders Guaranteed Creditors for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the LendersGuaranteed Creditors. Each of the Agents Agent shall, in the absence of actual 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. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender Guaranteed Creditors of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Guaranteed Creditors or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it 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. The Each Lenders (acting for itself and on behalf of each of its Lender Affiliates which is or becomes a Guaranteed Creditor from time to time) hereby acknowledge acknowledges that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a 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, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an 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 each of the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Canadian Parent or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, none of CGMI, as the Lead Arranger, The Toronto-Dominion Bank, as Syndication Agent, or Comerica Bank or HSBC Bank USA, National Association, as Co-Documentation Agents, shall have any obligations, duties or responsibilities under this Agreement or any other Loan Document, and shall have no liability to any Lender or Loan Party or any of their respective Affiliates or any other Person in connection therewith or as a result thereof. The provisions of the third, fifth and sixth paragraphs of Section 8.01 shall apply to CGMI, as the Lead Arranger, The Toronto-Dominion Bank, as Syndication Agent, and Comerica Bank and HSBC Bank USA, National Association, as Co-Documentation Agents as fully as if it were an Agent.
Appears in 1 contract
Samples: Credit Agreement (Intertape Woven Products Services S.A. De C.V.)
The Agents. SECTION 7.01. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association CUSA is hereby appointed to act as Administrative Paying Agent on behalf of the Lenders and Chase is JPMCB and CUSA are hereby appointed to act as CAF Agent, Administrative Agents on behalf of the Lenders. The Administrative Agents do not assume any responsibility or obligation under this Agreement or any duties as agents for the Lenders. The title "Administrative Agent" implies no fiduciary obligation on the part of any Administrative Agent to any Person and the use of such title does not impose on any Administrative Agent any duties under this Agreement. Each of the Lenders hereby irrevocably authorizes the Agents each Agent to take such actions on behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Paying Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Revolving Credit Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Paying Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by the Paying Agent. It is understood that the Agent Parties, the Co-Syndication Agents and the Co-Documentation Agents shall not have any duties or obligations except those expressly set forth herein. Neither any Agent Party 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 Borrowers Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents No Agent Party shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents Each Agent Party may deem and treat the Lender which makes any Revolving Credit Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it until, in the case of the Paying Agent, the Paying Agent shall have received notice from such Lender or, in the case of any other Agent Party, such Agent Party shall have received notice from the Paying Agent that it received such notice from such Lender, in each case, given as provided herein, of the transfer thereof. The Agents Each Agent Party shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent Party 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. No Neither any Agent or Party nor any of its directors, officers, employees or agents shall have any responsibility to the Borrowers Borrower on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents Agent Party 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. The Lenders hereby acknowledge that the Agents each Agent shall be under no 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. Subject to the appointment and acceptance of a successor Paying Agent as provided below, either any Agent may resign at any time by notifying the Lenders and the BorrowersBorrower. Upon any such resignationresignation of the Paying Agent, the Required Lenders shall have the right to appoint a successor Paying Agent acceptable to the BorrowersBorrower. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Paying Agent gives notice of its resignation, then the retiring Paying Agent may, on behalf of the Lenders, appoint a successor AgentPaying Agent which shall be 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 any such bank. Upon the acceptance of any appointment as a Paying Agent hereunder by a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Paying Agent and the retiring Paying Agent shall be discharged from its duties and obligations hereunder. After any 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 an Agent. With respect to the Revolving Credit Loans made by it hereunder, each of the Agents, any Agent in its individual capacity and not as an 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 each of the Agents Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the AgentsPaying 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) Pro Rata Share of any expenses incurred for the benefit of the Lenders in its role as by such 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 Borrowers Borrower, and (iii) to indemnify and hold harmless each of the Agents Agent Party and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata sharePro 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 Party 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 BorrowersBorrower; provided that no Lender shall be liable to any Agent Party for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent Party or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith to indemnify the Issuing Banks (to the extent not promptly reimbursed by the Agents Borrower) from and against such Lender's ratable share (determined as provided below) of any and all liabilities, 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 any such Issuing Bank in any way relating to or arising out of this Agreement or any action taken or omitted by such Issuing Bank hereunder or in connection herewith; provided, however, that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements either (i) resulting from such Issuing Bank's gross negligence or willful misconduct as found in a final, non-appealable judgment by a court of competent jurisdiction or (ii) relating to the reimbursement of any draw under a Letter of Credit paid after the date on which the Lenders' obligations to purchase or hold participations in Letters of Credit has terminated in accordance with Section 2.03(b). Without limitation of the foregoing, each Lender agrees to reimburse any such Issuing Bank promptly upon demand for its ratable share of any costs and expenses (including, without limitation, fees and expenses of counsel) payable by the Borrower under Section 8.05, to the extent that such Issuing Bank is not promptly reimbursed for such costs and expenses by the Borrower. For purposes of this paragraph, each Lender's respective ratable share of any amount shall be determined, at any time, according to the sum of (i) the aggregate principal amount of the Revolving Credit Loans outstanding at such time and owing to such Lender, (ii) such Lender's respective Pro Rata Share of the aggregate Available Amount of all Letters of Credit outstanding at such time and (iii) such Lender's respective Unused Commitment at such time; provided that the aggregate principal amount of Revolving Credit Loans owing to the Issuing Banks as a result of drawings under Letters of Credit shall be considered to be owed to the Lenders ratably in accordance with their respective Revolving Credit Commitments (or, if the Revolving Credit Commitments have expired or been terminated, in accordance with clause (ii) of the definition of "Pro Rata Share"). The failure of any Lender to reimburse any such Issuing Bank promptly upon demand for its ratable share of any amount required to be paid by the Lenders to such Issuing Bank as provided herein shall not relieve any other Lender of its obligation hereunder to reimburse such Issuing Bank for its ratable share of such amount, but no Lender shall be responsible for the failure of any other Lender to reimburse any such Issuing Bank for such other Lender's ratable share of such amount. Without prejudice to the survival of any other agreement of any Lender hereunder, the agreement and obligations of each Lender contained in the prior two paragraphs of this Section 7.01 shall survive the payment in full of principal, interest and all other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposespayable hereunder. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent Party 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 Agents any Agent Party 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 or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: 364 Day Revolving Credit Facility Agreement (At&t Corp)
The Agents. In order to expedite the transactions contemplated by this AgreementCiticorp North America, Chase Bank of Texas, National Association Inc. is hereby appointed to act as Administrative Agent and Chase the U.S. Collateral Agent on behalf of the U.S. Lenders, and Citibank International plc is hereby appointed to act as CAF Agent, the U.K. Administrative Agent and Citicorp Trustee Company Limited is hereby appointed to act as the Euro Collateral Agent on behalf of the Revolving Euro Lenders. Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent (it being understood that with respect to the Euro Collateral Agent, only to the extent expressly set forth in the Euro Intercreditor Agreement) is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, and all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to any of the Borrowers of any Default or Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrowers pursuant to this Agreement as received by such Agent. None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall be liable to the Lenders as such for any action taken or omitted by any of them except for to the extent finally judicially determined to have resulted from 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 Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual 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. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it 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. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the Borrowers. Upon any such resignation, the Required Requisite Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 500.0 million or an Affiliate of any such bank. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, 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. After an Agent’s resignation hereunder, the provisions of this Article and Section 10.05 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 an Agent. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an 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 each of the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Crown Holdings or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Each Lender hereby authorizes the Collateral Agents to enter into the U.S. Intercreditor Agreement and the Euro Intercreditor Agreement, the Receivables Intercreditor Agreement, the Sharing Agreement and each Security Document on behalf of such Lender and to exercise its rights and perform its obligations thereunder. Each of the Revolving Euro Lenders further agrees to supply the U.K. Administrative Agent with any information required by it in order to calculate the Mandatory Cost in accordance with Exhibit U in respect of Eurocurrency Borrowings denominated in Pounds Sterling or Euros. Notwithstanding anything to the contrary in this Agreement, none of the Term B Arranger, Joint Lead Arrangers, the Syndication Agent, the Co-Documentation Agents or the Senior Managing Agent, in such capacities, shall have any obligations, duties or responsibilities, and shall incur no liabilities, under this Agreement or any other Loan Document. Each of the Lenders represents to the Agents only that neither the execution and delivery of the Security Documents by the Administrative Agent and the U.K. Administrative Agent on behalf of such Lender nor the performance thereof by the Administrative Agent and the U.K. Administrative Agent on behalf of such Lender will conflict with or create a default or violation under (a) such Lender’s organizational documents, (b) any other agreement, instrument or document that such Lender is a party to or (c) any applicable law, rule, regulation, order, decree or judgment. Each Revolving Euro Lender and any New Term Euro Lender appoints and designates the U.K. Administrative Agent as the Person holding the power of attorney (“fondé de pouvoir”) within the meaning of Article 2692 of the Civil Code of Quebec for the purposes of the hypothecary security to be granted by each of CROWN Metal Packaging Canada LP, CROWN Metal Packaging Canada Inc. and 3079939 Nova Scotia Company/3079939 Compagnie de la Nouvelle Ecosse pursuant to those deeds of hypothec in the Province of Quebec and, in such capacity, the U.K. Administrative Agent shall hold the hypothecs granted in the Province of Quebec for the benefit of the Revolving Euro Lenders and any New Term Euro Lenders and shall act as their agent in the exercise of the rights conferred thereunder. Each Lender further acknowledges that the first issue of 25% Collateral Demand Mortgage Debentures to be issued pursuant to the Deed of Hypothec may be purchased from the grantor of such hypothec by CROWN Metal Packaging Canada LP, CROWN Metal Packaging Canada Inc. or 3079939 Nova Scotia Company/3079939 Compagnie de la Nouvelle Ecosse by underwriting, purchase, subscription or otherwise notwithstanding the terms of Section 32 of the Act respecting the Special Power of Legal Persons (Quebec).
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association each Agent is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and the LC Disbursements and all other amounts due to the Lenders and the CAF Agent Issuing Lenders hereunder, and promptly to distribute to each Lender and the CAF Agent Issuing Lender its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Westinghouse of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by Westinghouse pursuant to this Agreement as received by the Administrative Agent. Neither any Agent or 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 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 Borrowers Westinghouse of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents 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. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents 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. The Lenders hereby acknowledge that the Agents shall be under no 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. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a 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, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an 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 each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association each Agent is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Lenders all payments of principal of and interest on the Loans and the LC Disbursements and all other amounts due to the Lenders and the CAF Agent Issuing Lenders hereunder, and promptly to distribute to each Lender and the CAF Agent Issuing Lender its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as received by the Administrative Agent. Neither any Agent or 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 Borrowers any Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the 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 Issuing Lenders. Each of the Agents The Administrative 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 Person or personsPersons. No Agent or Neither the Agents nor any of its their directors, officers, employees or agents shall have any responsibility to the Borrowers any Borrower on account of the failure of or delay in performance or breach by the other Agent any Lender or any Issuing Lender of any of its obligations hereunder or to the other Agent any Lender or any Issuing Lender on account of the failure of or delay in performance or breach by any other LenderAgent, the any other Agent Lender or Issuing Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents The Administrative 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. The Lenders and the Issuing Lenders hereby acknowledge that the Agents Administrative Agent shall be under no 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. Subject to the appointment and acceptance of a successor Administrative Agent as provided below, either the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint from the Lenders a successor Agent acceptable to the Borrowerssuccessor. 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 from the Lenders a successor AgentAdministrative Agent which shall be 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 affiliate of any such bank, which successor shall be acceptable to Viacom (such acceptance not to be unreasonably withheld). Upon the acceptance of any appointment as Administrative Agent hereunder by a successor bank, 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. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.5 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 Administrative Agent. With respect to the Loans made by it them and their LC Exposure hereunder, each of the Agents, Agents in its their individual capacity and not as an Agent Agents shall have the same rights and powers as any other Lender and may exercise the same as though it they were not an AgentAgents, and each of the Agents and their Affiliates affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary of their respective Subsidiaries or other any Affiliate thereof as if it they were not an AgentAgents. Each Lender and Issuing Lender agrees (i) to reimburse the Agents, on demand, Administrative Agent in the amount of its pro rata share (based on its Commitment hereunder Total Facility Percentage or, if after the Commitments date on which the Loans shall have been terminatedpaid in full, the amount of based on its outstanding LoansTotal Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders in its role as or the Issuing Lenders by the Administrative Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Issuing Lenders, which shall not have been reimbursed by the Borrowers or on behalf of any Borrower and (iii) to indemnify and hold harmless each of the Agents Administrative 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 Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement Agreement, to the extent the same shall not have been reimbursed by the Borrowersor on behalf of Viacom; provided provided, that no Lender or Issuing Lender shall be liable to the Administrative Agent or any Agent such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such the Administrative Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Issuing Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender or Issuing 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 Issuing Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender or Issuing 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 or Agreement, any related agreement or any document furnished hereunder or thereunder. Neither the Co-Documentation Agents, the Syndication Agent, the Joint Lead Arrangers nor any managing agent shall have any duties or responsibilities hereunder in its capacity as such.
Appears in 1 contract
Samples: Credit Agreement (Viacom Inc)
The Agents. In order to expedite the transactions contemplated by this AgreementSECTION 8.01. THE AGENTS. Citicorp North America, Chase Bank of Texas, National Association Inc. is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each Lender that holds First Lien Term Loans or has First Lien Term Commitments and each holder of any Related Hedging Obligations and each person holding Overdraft Obligations (in each case, in its capacity as such) hereby irrevocably designates and appoints the First Lien Collateral Agent as an agent of such person under this Agreement and each other Loan Document to which the First Lien Collateral Agent is a party. Each Lender that holds Second Lien Term Loans or has Second Lien Term Commitments (in each case, in its capacity as such) hereby irrevocably designates and appoints the Second Lien Collateral Agent as an agent of such person under this Agreement and each other Loan Document to which the Second Lien Collateral Agent is a party. Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to any of the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by such Agent. In addition, without hereby limiting any implied authority, each First Lien Lender hereby expressly authorizes and directs the First Lien Collateral Agent or to enter into the Collateral Sharing Agreement and each other Loan Document to which it is a party as its agent, each Second Lien Lender hereby expressly authorizes and directs the Second Lien Collateral Agent to enter into the Collateral Sharing Agreement and each other Loan Document to which it is a party as its agent, and each Lender agrees to be bound by the terms of the Collateral Sharing Agreement and such other Loan Documents as if it were directly a party thereto. None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from 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 Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual 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. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it 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. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersBorrower. Upon any such resignation, the Required Requisite Lenders (with the consent of the Borrower, not to be unreasonably withheld) shall have the right to appoint a successor; PROVIDED, HOWEVER, that until such time as all First Lien Obligations have been paid in full in cash or Cash Equivalents, no such successor Agent acceptable shall be appointed without the approval of the Required First Lien Lenders (with the consent of the Borrower, not to the Borrowersbe unreasonably withheld). If no successor shall have been so appointed by the Requisite Lenders or the Required Lenders First Lien Lenders, as the case may be, and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent maymay (with the consent of the Borrower, not to be unreasonably withheld), on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 500.0 million or an Affiliate of any such bank. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, 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. After an Agent's resignation hereunder, the provisions of this Article 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 an Agent. With respect to the any Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent. In addition, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it any were not an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither CGMI, as Sole Lead Arranger and Sole Bookrunner, nor Citicorp North America, Inc., as Syndication Agent, nor Citicorp North America, Inc., as Documentation Agent, in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 1 contract
Samples: Credit Agreement (Polymer Group Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank the Persons named in the heading of Texas, National Association is this Agreement are hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Canadian Administrative Agent on behalf of the LendersLenders and the Issuing Banks. Each of the Lenders Lenders, each assignee of any Lender and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee or Issuing Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is and, to the extent expressly provided herein, the Canadian Administrative Agent are hereby expressly authorized by the Lenders and the CAF AgentIssuing Banks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Banks all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent Issuing Banks hereunder, and promptly to distribute to each Lender and the CAF Agent or Issuing Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any 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 other Loan Party pursuant to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or the other instruments or agreementsLoan Documents as received by the Administrative Agent. The Agents may deem and treat Without limiting the Lender which makes any Loan as the holder generality of the indebtedness resulting therefrom for foregoing, the Administrative Agent is hereby expressly authorized to release any Subsidiary Guarantor from its obligations under the Subsidiary Guarantee Agreement in the event that all purposes hereof until it shall have received notice from the capital stock of such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto Guarantor shall be binding on all sold, transferred or otherwise disposed of to a Person other than the Lenders. Each of the Agents 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. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents 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. The Lenders hereby acknowledge that the Agents shall be under no 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. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a 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, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 Company or an Affiliate of the Company in a transaction not prohibited by this Agreement. It is understood and agreed that the use of the term "agent" herein or in any such bank. Upon other Loan Documents (or any other similar term) with reference to the acceptance Administrative Agent and the Canadian Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any appointment applicable law. Instead such term is used as Agent hereunder by a successor bankmatter of market custom, such successor and is intended to create or reflect only an administrative relationship between contracting parties. With respect to the Loans made by it hereunderunder this Agreement, each of the Agents, Agent in its individual capacity and not as an 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 each of the Agents and their Affiliates may accept deposits from, lend money to to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrowers Company or any Subsidiary or other Affiliate thereof as if it were not an AgentAgent under the Loan Documents and without any duty to account therefor to the Lenders. Each Lender agrees (i) to reimburse the Agents, on demand, The Agents shall not have any duties or obligations except those expressly set forth in the amount Loan Documents, and their duties under the Loan Documents shall be administrative in nature. Without limiting the generality of its pro rata share the foregoing, (based on its Commitment hereunder ora) no Agent shall be subject to any fiduciary or other implied duties, if the Commitments regardless of whether a Default has occurred and is continuing, (b) no Agent shall have been terminatedany duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the amount Loan Documents that such Agent is required to exercise upon receipt of its outstanding Loans) of any expenses incurred for notice in writing by the benefit Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that such Agent shall not be required to take any action that, in its role as Agentopinion or the opinion of its counsel, may expose such Agent to liability or that is contrary to any Loan Document or applicable law, including counsel fees and compensation for the avoidance of agents and employees paid for services rendered on behalf doubt any action that may be in violation of the Lendersautomatic stay under any Debtor Relief Law or that may effect a forfeiture, which shall not have been reimbursed by the Borrowers modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (ic) except as expressly set forth in the Loan Documents, no Agent shall have any duty to indemnify disclose, and hold harmless each of no Agent shall be liable for the Agents and failure to disclose, any information relating to the Company or 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 Subsidiaries that is communicated 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 obtained by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such institution serving as Agent or any of its directorsAffiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, officers, employees or agents. Each Lender agrees that any allocation made as such Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence, bad faith or willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by a Borrower, and no Agent shall 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 Agents contents of expenses any certificate, report or other amounts referred to document delivered hereunder or thereunder or in this paragraph between this Agreement and connection herewith or therewith, (iii) the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it hasperformance or observance of any of the covenants, independently and without reliance upon agreements or other terms or conditions set forth herein or therein or the Agents occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other Lender and based on 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 such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this AgreementAgent. Each 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, sent or otherwise authenticated by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and in good faith 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 also acknowledges or an Issuing Bank, each Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless such Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. Each Agent may consult with legal counsel (who may be counsel for any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it willin accordance with the advice of any such counsel, independently accountants or experts. Each Agent may perform any and without reliance upon all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each 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 this Article shall apply to any such sub-agent and to the Agents 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. In taking any discretionary action hereunder, or in determining whether any provision hereof is applicable to any event, transaction or circumstance, the Administrative Agent may, in its discretion, but shall not be required (unless required by any other Lender and based on express provision hereof) to, communicate such documents and information as it shall from time proposed action or determination to time deem appropriate, continue the Lenders prior to make its own decisions in taking or making the same, and shall be entitled (subject to any otherwise applicable requirement of Section 10.02(b)), in the absence of any contrary communication received from any Lender within a reasonable period of time specified in such communication from the Administrative Agent, to assume that such proposed action or determination is satisfactory to such Lender. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Company shall have the right, with the consent of the Required Lenders (not taking action under to be unreasonably withheld or based upon delayed), to appoint a successor; provided, that if a Default has occurred and is continuing, the Required Lenders, and not the Company, shall have the right, in consultation with the Company, to appoint such successor. If no successor shall have been so appointed by the Company (or, if applicable, 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 (but shall not be obligated to), on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York or Toronto or London, as applicable, or an Affiliate of 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 the Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Agent's resignation hereunder, the provisions of this Agreement Article and Section 10.03 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 related agreement or any document furnished hereunder or thereunderof them while it was acting as Agent.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, The Chase Manhattan Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Collateral Agent, in each case on behalf of the LendersLenders and the Issuing Banks. Each of the Lenders and each assignee of any such Lender and each Issuing Bank, hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee or Issuing Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Banks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Banks all payments of principal of and interest on the Loans Loans, all payments in respect of L/C Disbursements and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and or the CAF Agent applicable Issuing Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent with its agency hereunder; (c) pursuant to Section 5.13, request the Parent Borrower to exercise all remedies under the Franchise Agreement (including Governance Remedies); and (d) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrowers or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of its the foregoing, the Administrative Agent and the Collateral Agent are 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 Borrowers agree that the Administrative Agent may designate prior to the Closing Date any other Lender with the title co-agent and that any such co-agent shall not be obligated to perform any duties in such capacity as a co-agent. Neither the Agents nor any of their respective 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 Borrowers or any other Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents, instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents 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. No Agent or Neither the Agents nor any of its their respective directors, officers, employees or agents shall have any responsibility to the Borrowers or any other Loan Party on account of the failure of or delay in performance or breach by the other Agent any Lender or any Lender Issuing Bank of any of its obligations hereunder or to the other Agent any Lender or any Lender Issuing Bank on account of the failure of or delay in performance or breach by any other Lender, Lender or Issuing Bank or the other Agent Borrowers or any Borrower other Loan Party of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents 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. The Lenders hereby acknowledge that none of the Agents shall be under no 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. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent any of the Agents may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders Lenders, with the consent of the Parent Borrower (which consent shall not be unreasonably withheld), shall have the right to appoint a successor Agent acceptable to successor, provided the Borrowersconsent of the Parent Borrower 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, having with the consent of the Parent Borrower (which consent shall not be unreasonably withheld), which shall be a bank that is a Lender and has a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank, provided the consent of the Parent Borrower shall not be required if an Event of Default has occurred and is continuing. Upon the acceptance of any appointment as Agent hereunder by a successor bank, 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. After the Agent's resignation hereunder, the provisions of this Article 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. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an 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 each of the Agents and their 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 an Agent. Each Lender agrees (ia) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the aggregate Commitments shall have been terminated, the amount of its outstanding Loanshereunder) of any expenses incurred for the benefit of the Lenders in its role as Agentby the Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which that shall not have been reimbursed by the Borrowers or any other Loan Party and (ib) to indemnify and hold harmless each of the Agents 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 that may be imposed on, incurred by or asserted against it in its capacity as 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; Borrowers or any other Loan Party, provided that no Lender shall be liable to an Agent or any Agent such other indemnified person for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting that are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Neither the Syndication Agent nor the Documentation Agent shall have any duties or responsibilities hereunder in its capacity as such.
Appears in 1 contract
The Agents. In order to expedite Each Lender hereby appoints and authorizes (a) the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents to take such actions action as agent on its behalf of such Lender or holder and to exercise such powers and discretion under this Agreement as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions powers and discretion as are reasonably incidental thereto, and (b) the Documentation Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Documentation Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto. As to any matters not expressly provided for by this Agreement (including, without limitation, enforcement or collection of the Notes), the Administrative 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 Required Lenders, and such instructions shall be binding upon all Lenders and all holders of Notes; provided, however, that the Administrative Agent shall not be required to take any action that exposes the Administrative Agent to personal liability or that is contrary to this Agreement or applicable law. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF Agent, without hereby limiting any implied authority, (a) agrees to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute give to each Lender and the CAF Agent its proper share prompt notice of each payment so received; (a) notice given to give notice on behalf of each of it by the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent Borrower or any of its Subsidiaries pursuant to the terms of this Agreement. Neither the Administrative Agent or the Documentation Agent nor any of its respective directors, officers, agents or employees or agents shall be liable as such for any action taken or omitted to be taken by any of it or them under or in connection with this Agreement, except for its or his or her their own gross negligence or willful misconduct. Without limitation of the generality of the foregoing, or be responsible for any statement, warranty or representation herein or the contents Administrative Agent and the Documentation Agent: (i) may treat the payee of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan Note as the holder thereof until the Administrative Agent receives and accepts an Assignment and Acceptance entered into by the Lender that is the payee of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderNote, given as assignor, and an Eligible Assignee, as assignee, as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance Section 8.07; (ii) may consult 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. Each of the Agents 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. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents 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 (including counsel for the Borrower), independent public accountants and other experts selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered omitted to be taken in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents , accountants or experts; (iii) make no warranty or representation to any Lender and shall not be under no responsible to any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement; (iv) shall not have any duty to take any discretionary action permitted ascertain or to be taken by it pursuant inquire as to the provisions performance or observance of any of the terms, covenants or conditions of this Agreement unless it shall be requested in writing to do so by on the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a 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 part of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 Borrower or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an 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 each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directorsSubsidiaries or to inspect the property (including the books and records) of the Borrower or any of its Subsidiaries; (v) shall not be responsible to any Lender for the due execution, officerslegality, employees validity, enforceability, genuineness, sufficiency 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 value of this Agreement or any action taken other instrument or omitted document furnished pursuant hereto; and (vi) shall incur no liability under or in respect of this Agreement by acting upon any notice, consent, certificate or other instrument or writing (which may be by telecopier, telegram or telex) believed by it under this Agreement to the extent the same shall not have been reimbursed be genuine and signed or sent by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses proper party or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunderparties.
Appears in 1 contract
Samples: Credit Agreement (United Parcel Service of America Inc)
The Agents. In order (a) For convenience of administration and to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase Documentary Agent and Hibernia is hereby appointed to act as CAF Agent, on behalf Co-Agent for the Lenders under this Agreement. None of the LendersAgents or Co- Agent shall have any duties or responsibilities with respect hereto except those expressly set forth herein or in the other Loan Documents. Each of the Lenders Lender and its successors and permitted assigns hereby irrevocably appoints and expressly authorizes the Agents Agents, without hereby limiting any implied authority, to take such actions action as the Agents may deem appropriate on its behalf of such Lender or holder and to exercise such powers under this Agreement as are specifically delegated to the Agents such Person by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder or as directed by the Required Lenders; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by the Administrative Agent. The Co-Agent is hereby expressly authorized to assist the Administrative Agent as requested by the Administrative Agent.
(b) None of the Agents or any of its their respective directors, officers, agents or employees or agents shall be liable as such for any action taken or omitted to be taken by any of them except for its or his or her own gross negligence or willful 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 Borrowers Borrower or any other party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the LendersLenders and each successor or permitted assign. Each of the Agents 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 Person or personsPersons. No Agent or None of the Agents nor any of its their respective directors, officers, employees or agents shall have any responsibility to the Borrowers Borrower or any other party on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent Borrower or any Borrower other party of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents 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. The Lenders hereby acknowledge that none of the Agents shall be under no 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. Subject to .
(c) To the appointment and acceptance of a successor extent that any Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed not be reimbursed by the Required Lenders and shall have accepted Borrower for any costs, liabilities or expenses incurred in 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, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereundercapacity, each of the Agents, in its individual capacity and not as an 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 each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, 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 LoansApplicable Percentage hereunder) of any expenses incurred for the benefit of the Lenders in its role as Agentby the Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers Lenders and (iii) to indemnify and hold harmless each of the Agents Agent and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata shareApplicable Percentage, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as 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 to the extent the same shall not have been reimbursed by the Borrowersor any other Loan Document; provided provided, however, that no Lender shall be liable to any 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 willful wilful misconduct of such Agent or any of its directors, officers, employees or agents. Each .
(d) With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender agrees that any allocation made in good faith by and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of expenses business with the Borrower or any Subsidiary or other amounts referred Affiliate thereof as if it were not an Agent.
(e) Subject to the appointment and acceptance of a successor Agent as provided below, any Agent may resign at any time by giving written notice thereof to the Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right to appoint, and the Borrower shall have the right to approve (such approval not to be unreasonably withheld or delayed) a successor Administrative Agent or Documentary Agent, as the case may be. If no successor Agent or Documentary Agent, as the case may be, shall have been so appointed and approved and shall have accepted such appointment, within 30 days after the retiring Agent's giving of notice of resignation, then the retiring Person may, on behalf of the Lenders, appoint a successor Administrative Agent or Documentary Agent, as the case may be, which shall be a Lender with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such Lender. Upon the acceptance of any appointment as Administrative Agent or Documentary Agent hereunder by a successor Administrative Agent or Documentary Agent, as the case may be, such successor Administrative Agent or Documentary 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 from and after such date be discharged from its duties and obligations hereunder. After any such retiring Agent's resignation hereunder as Administrative Agent or Documentary Agent, as applicable, the provisions of this paragraph between Article VIII and Section 9.04 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was acting as the Administrative Agent or Documentary Agent, as applicable.
(f) The Administrative Agent and the Documentary Agent shall be responsible for supervising the preparation, execution and delivery of this Agreement and the Facility A Credit Agreement other agreements and instruments contemplated hereby, any amendment or modification thereto and the closing of the transactions contemplated hereby and thereby.
(g) The obligations of the Administrative Agent and the Documentary Agent shall be conclusive separate and binding several and neither of them shall be responsible or liable for all purposes. the acts or omissions of the other, except, to the extent that any such Agent serves in more than one agent capacity, such Agent shall be responsible for the acts and omissions relating to each such agency function.
(h) Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Agent on behalf of the LendersLenders and the Fronting Bank. Each of the Lenders and the Fronting Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder and the Fronting Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders Lenders, the Fronting Bank and the CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders Lenders, the Fronting Bank and the CAF Agent all payments of principal of and interest on the Loans Outstanding Credits and all other amounts due to the Lenders Lenders, the Fronting Bank and the CAF Agent hereunder, and promptly to distribute to each Lender Lender, the Fronting Bank and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders and the Fronting Bank to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender and the Fronting Bank copies of all notices, financial statements and other materials delivered by the Borrowers pursuant to this Agreement as received by the Administrative Agent. No Agent or 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 Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be 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 Agents may deem and treat the Lender or the Fronting Bank which makes any Loan Extension of Credit as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderLender or the Fronting Bank (as the case may be), given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the LendersLenders and the Fronting Bank. Each of the Agents 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. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender or the Fronting Bank of any of its obligations hereunder or to the other Agent or any Lender or the Fronting Bank on account of the failure of or delay in performance or breach by any other LenderLender or the Fronting Bank , the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents 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. The Lenders and the Fronting Bank hereby acknowledge that neither of the Agents shall be under no 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. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders Lenders, the Fronting Bank and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a 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 LendersLenders and the Fronting Bank, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, 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. After any 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 Agent. With respect to the Loans Extensions of Credit made by it hereunder, each of the Agents, in its individual capacity and not as an 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 each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, 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 LoansOutstanding Credits) of any expenses incurred for the benefit of the Lenders or the Fronting Bank in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the LendersLenders or the Fronting Bank, which shall not have been reimbursed by the Borrowers and (iii) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such 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 Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender and the Fronting Bank acknowledges that it has, independently and without reliance upon the Agents or any other Lender or the 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 the Fronting Bank also acknowledges that it will, independently and without reliance upon the Agents or any other Lender or the 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 or any related agreement or any document furnished hereunder or thereunder. Neither Bank of America, N.A. nor Citibank, N.A. shall, by virtue of its designation as "Co-Syndication Agent", nor shall The Bank of New York, by virtue of its designation as "Documentation Agent", have any duties, liabilities, obligations or responsibilities under this Agreement other than as a Lender hereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Royal Bank of Texas, National Association Canada is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the Lenders. Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent is hereby expressly authorized by the Lenders and the CAF Agenteach Secured Party, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Secured Parties all payments of principal of and interest on the Loans Obligations, all payments and all other amounts due to the Lenders and the CAF Agent Secured Parties hereunder, and promptly to distribute to each Lender and the CAF Agent Secured Party its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by Borrower pursuant to this Agreement as received by such Agent; (d) to enter into the Security Documents on behalf of the Secured Parties; and (e) to claim all Obligations owed to any Secured Party against Borrower in its own name for the purpose of any Security Documents. None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from 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 Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual 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 Person or persons. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it 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. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowersBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Banks, appoint a successor AgentAgent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 500.0 million or an Affiliate of any such bank. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, 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. After an Agent’s resignation hereunder, the provisions of this Article 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 an Agent. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an 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 each of the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither RBC Capital Markets, as Lead Arranger, nor General Electric Capital Corporation, as Syndication Agent, in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association each Agent is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and the LC Disbursements and all other amounts due to the Lenders and the CAF Agent Issuing Lenders hereunder, and promptly to distribute to each Lender and the CAF Agent Issuing Lender its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as received by the Administrative Agent. Neither any Agent or 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 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 Borrowers any Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the 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 Issuing Lenders. Each of the Agents The Administrative 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 Person or personsPersons. No Agent or Neither the Agents nor any of its their directors, officers, employees or agents shall have any responsibility to the Borrowers any Borrower on account of the failure of or delay in performance or breach by the other Agent any Lender or any Issuing Lender of any of its obligations hereunder or to the other Agent any Lender or any Issuing Lender on account of the failure of or delay in performance or breach by any other LenderAgent, the any other Agent Lender or Issuing Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents The Administrative 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. The Lenders and the Issuing Lenders hereby acknowledge that the Agents Administrative Agent shall be under no 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. Subject to the appointment and acceptance of a successor Administrative Agent as provided below, either the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint from the Lenders a successor Agent acceptable to the Borrowerssuccessor. 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 from the Lenders a successor AgentAdministrative Agent which shall be 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 affiliate of any such bank, which successor shall be acceptable to Infinity (such acceptance not to be unreasonably withheld). Upon the acceptance of any appointment as Administrative Agent hereunder by a successor bank, 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. After the Administrative Agent's resignation hereunder, the provisions of this Article and Section 9.5 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 Administrative Agent. With respect to the Loans made by it them and their LC Exposure hereunder, each of the Agents, Agents in its their individual capacity and not as an Agent Agents shall have the same rights and powers as any other Lender and may exercise the same as though it they were not an AgentAgents, and each of the Agents and their Affiliates affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary of their respective Subsidiaries or other any Affiliate thereof as if it they were not an AgentAgents. Each Lender and Issuing Lender agrees (i) to reimburse the Agents, on demand, Administrative Agent in the amount of its pro rata share (based on its Commitment hereunder Total Facility Percentage or, if after the Commitments date on which the Loans shall have been terminatedpaid in full, the amount of based on its outstanding LoansTotal Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders in its role as or the Issuing Lenders by the Administrative Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Issuing Lenders, which shall not have been reimbursed by the Borrowers or on behalf of any Borrower and (iii) to indemnify and hold harmless each of the Agents Administrative 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 Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement Agreement, to the extent the same shall not have been reimbursed by the Borrowersor on behalf of Infinity; provided provided, that no Lender or Issuing Lender shall be liable to the Administrative Agent or any Agent such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful wilful misconduct of such the Administrative Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Issuing Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender or Issuing 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 Issuing Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender or Issuing 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 or Agreement, any related agreement or any document furnished hereunder or thereunder. Neither the Documentation Agent, the Co-Syndication Agents, the Arrangers nor any managing agent shall have any duties or responsibilities hereunder in its capacity as such.
Appears in 1 contract
Samples: Credit Agreement (Viacom Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent or London Agent in the heading of this Agreement and its successors to serve as Administrative Agent or London Agent, respectively, under the Loan Documents, and authorizes the Agents to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby Agents shall not have any duties or obligations except those expressly authorized by set forth in the Lenders and Loan Documents. Without limiting the CAF Agent, without hereby limiting any implied authoritygenerality of the foregoing, (a) the Agents shall not be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agents are required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as an Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 9.02), provided that no Agent shall be required to take any action that, in its opinion, could expose such Agent to liability or be contrary to any Loan Document or applicable law, rule or regulation, and (c) except as expressly set forth in the CAF Agent all payments of principal of Loan Documents, the Agents shall not have any duty to disclose, and interest on shall not be liable for the Loans and all other amounts due failure to disclose, any information relating to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent Borrower or any of its directors, officers, employees the Subsidiaries that is communicated to or agents obtained by them or any of their Affiliates in any capacity. The Agents shall not be liable as such for any action taken or omitted not taken by any them with the consent or at the request of them except for its the Required Lenders (or his such other number or her percentage of the Lenders as shall be necessary, or as an Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 9.02) or in the absence of their own gross negligence or willful misconductmisconduct (as determined by a final, non-appealable judgment of a court of competent jurisdiction). Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein 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 herewithherewith or therewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in any Loan Document, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, sufficiency validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge Notwithstanding anything herein to the contrary, be entitled to rely on the Agents shall not have any instrument liability arising from any confirmation of the Revolving Exposure 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. No Agent component amounts thereof, any Exchange Rate or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithUS Dollar Equivalent. Each of the Agents may execute any and all duties hereunder by or through agents or employees and Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the advice of proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through its respective Related Parties. The Lenders hereby acknowledge that exculpatory provisions of the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to preceding paragraphs and the provisions of this Agreement unless Section 9.03 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. Any Person serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it shall be requested were not an Agent, and such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in writing any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent hereunder and without any duty to do so by account therefor to the Required LendersLenders or Issuing Banks. Subject to the appointment and acceptance of a successor Agent as provided belowin this paragraph, either each Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowersBorrower. Upon any such resignation, the Required Lenders (in the case of a resignation by the Administrative Agent) or the Administrative Agent (in the case of a resignation by the London Agent) shall have the right right, with the Borrower’s approval (so long as no Event of Default has occurred and is continuing) to appoint a successor Agent acceptable to the Borrowerssuccessor. 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 LendersLenders and the Issuing Banks, appoint a successor AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of 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 Borrower’s approval, appoint a successor. If no such successor shall have been so appointed and shall have accepted such appointment within 30 days (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring or removed Agent, in its individual capacity and not as an the retiring or removed Agent shall have be discharged from its duties and obligations hereunder. The fees payable by the same rights and powers as any other Lender and may exercise Borrower to a successor Agent shall be the same as though it were not those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After an Agent’s resignation or removal hereunder, the provisions of this Article and each Section 9.03 shall continue in effect for the benefit of the Agents such retiring or removed Agent, its sub–agents and their Affiliates may accept deposits from, lend money respective Related Parties in respect of any actions taken or omitted to and generally engage in be taken by any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof them while it was acting as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender Issuing Bank acknowledges that it has, independently and without reliance upon the Agents either Agent, any Arranger 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 Issuing Bank also acknowledges that it will, independently and without reliance upon the Agents either Agent, any Arranger 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, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The parties agree that none of the Arrangers, the Syndication Agents or the Documentation Agents referred to on the cover page of this Agreement shall, in its capacity as such, have any duties or responsibilities under this Agreement or any other Loan Document.
Appears in 1 contract
Samples: Credit Agreement (Broadridge Financial Solutions, Inc.)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and each Issuing Bank hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes the Agents such Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents such Agent by the terms of this Agreement and provisions hereofthe other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent or 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 Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents 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 The Toronto-Dominion Bank and correct and to have been signed or sent by the proper person or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents 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. The Lenders hereby acknowledge that the Agents shall be under no 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. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a 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, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an Agent Chase Manhattan Bank shall have the same rights and powers in its capacity as a Lender hereunder as any other Lender and may exercise the same as though it Toronto Dominion (Texas) Inc. were not an the Administrative Agent and The Chase Manhattan Bank were not the Collateral Agent, and each of the Agents such bank and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers any Credit Party or any Subsidiary subsidiary or other Affiliate of any thereof as if it were not an Agentsuch Agent hereunder. Each Lender agrees Neither Agent shall have any duties or obligations except those expressly set forth in this Agreement and the other Loan Documents. Without limiting the generality of the foregoing, (ia) neither CREDIT AGREEMENT 103 - 97 - Agent shall be subject to reimburse any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) neither Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by this Agreement and the Agentsother Loan Documents that such Agent is required to exercise in writing by the Required Lenders, on demand, and (c) except as expressly set forth herein and in the amount of its pro rata share (based on its Commitment hereunder orother Loan Documents, if the Commitments neither Agent shall have been terminatedany duty to disclose, the amount of its outstanding Loans) of any expenses incurred and shall not be liable for the benefit of the Lenders in its role as Agentfailure to disclose, 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 (i) any information relating to indemnify and hold harmless each of the Agents and any Credit Party or 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 respective subsidiaries that is communicated 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 obtained by the Borrowers; provided that no Lender shall be liable to any 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 bank serving as such Agent or any of its directorsAffiliates in any capacity. Neither Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders or, officersif provided herein, employees with the consent or agentsat the request of the Required Lenders of a particular Class, or in the absence of its own gross negligence or wilful misconduct. Neither Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower, a Lender or the other Agent, and neither Agent shall 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 the other Loan Documents, (ii) the contents of any certificate, report or other document delivered hereunder or under any of the other Loan Documents or in connection herewith of therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or in any other Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, the other Loan Documents or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article V or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to such Agent. Neither Agent shall, except to the extent expressly instructed by the Required Lenders with respect to collateral security under the Security Documents, be required to initiate or conduct any litigation or collection proceedings hereunder or under any other Loan Document. Each Lender agrees that Agent shall be entitled to rely upon, and shall not incur any allocation made in good faith 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 Agents proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of expenses any such counsel, accountants or other amounts referred experts. Either Agent may perform any and all of its duties, and exercise its rights and powers, by or through any one or more sub-agents appointed by such Agent. Either 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 such Agent and any such sub-agent, 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 Agent. Subject to the appointment and acceptance of a successor Administrative Agent or Collateral Agent, as the case may be, as provided in this paragraph between this Agreement paragraph, either Agent may resign at any time CREDIT AGREEMENT 104 - 98 - by notifying the Lenders, each Issuing Bank, the Borrower and the Facility A Credit Agreement other Agent. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor Administrative Agent, and the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor Collateral Agent. If no successor shall have been so appointed and shall have accepted such appointment within 30 days after such retiring Agent gives notice of its resignation, then such retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent or Collateral Agent, as the case may be, which shall be conclusive a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent or Collateral Agent, as the case may be, by a successor, such successor shall succeed to and binding become vested with all the rights, powers, privileges and duties of such retiring Agent, and such retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After an Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for all purposesits benefit in respect of any actions taken or omitted to be taken by it while it was acting as Administrative Agent or Collateral Agent, as the case may be. Each Lender acknowledges that it has, independently and without reliance upon the Agents Administrative Agent, the Collateral Agent, any Issuing Bank or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents Administrative Agent, the Collateral Agent, any Issuing Bank or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or and the other Loan Documents, any related agreement or any document furnished hereunder or thereunder. Anything herein to the contrary notwithstanding, none of the Joint Book Managers, Co-Lead Arrangers or Arrangers listed on the cover page hereof, nor the Syndication Agent, shall have any duties or responsibilities under this Agreement, except in their capacity, if any, as Agents or Lenders hereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this AgreementSECTION 8.01. The Agents. Citicorp North America, Chase Bank of Texas, National Association Inc. is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the Lenders. Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by such Agent, (d) to enter into the Security Documents on behalf of the Lenders and (e) to claim all Obligations owed to any Lender against the Borrower in its own name for the purpose of any Security Documents. None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from 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 Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual 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. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it 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. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 500.0 million or an Affiliate of any such bank. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, 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. After an Agent's resignation hereunder, the provisions of this Article and Section 10.05 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 an Agent. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an 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 each of the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither CGMI, as a Lead Arranger, in such capacity, nor CGMI or Banc One, as Syndication Agents, or RFC, as Documentation Agent, shall have any obligations, duties or responsibilities, and shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, The JPMorgan Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the Lenders. Each of the Lenders and each assignee of any such Lender, hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to any of the Borrowers of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrowers pursuant to this Agreement as received by such Agent. Neither Agent or nor any of its directors, officers, employees or agents Related Parties shall be liable to the Lenders as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful 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 Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents 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. No Neither any Agent or nor any of its directors, officers, employees or agents Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it 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. The Lenders hereby acknowledge that the Agents neither Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. 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 LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be 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 any such bank. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, 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. After an Agent's resignation hereunder, the provisions of this Article and Section 10.05 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 an Agent. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an 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 each of the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers CCSC or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents either 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 Agents either 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 or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Each Lender hereby authorizes the Administrative Agent to enter into the Intercreditor Agreement on behalf of such Lender and to exercise its rights and perform its obligations thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably appoints the Agents as its agents and authorizes the Agents to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms hereof and provisions hereofof the other Credit Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent bank or 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 Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan banks serving 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 Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents 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. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents 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. The Lenders hereby acknowledge that the Agents shall be under no 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. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a 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, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers in their capacity as Lenders as any other Lender and may exercise the same as though it they were not an AgentAgents, and each of the Agents such bank or banks and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it they were not an AgentAgents hereunder. Each Lender agrees (i) to reimburse the Agents, 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 The Agents shall not have been reimbursed by any duties or obligations except those expressly set forth herein. Without limiting the Borrowers and (i) to indemnify and hold harmless each generality of the foregoing (a) the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and any of its directorsis continuing, officers, employees or agents, on demand, in (b) 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 Agents shall not have been reimbursed any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Agents are required to exercise in writing by the Borrowers; provided that no Lender Majority Lenders, and (c) except as expressly set forth herein, the Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by information communicated to the Agents of expenses by or other amounts referred relating to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents Borrower 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 Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunder.any
Appears in 1 contract
Samples: Second Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association each Agent is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and the LC Disbursements and all other amounts due to the Lenders and the CAF Agent Issuing Lenders hereunder, and promptly to distribute to each Lender and the CAF Agent Issuing Lender its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as received by the Administrative Agent. 58 54 Neither any Agent or 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 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 Borrowers any Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the 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 Issuing Lenders. Each of the Agents The Administrative 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 Person or personsPersons. No Agent or Neither the Agents nor any of its their directors, officers, employees or agents shall have any responsibility to the Borrowers any Borrower on account of the failure of or delay in performance or breach by the other Agent any Lender or any Issuing Lender of any of its obligations hereunder or to the other Agent any Lender or any Issuing Lender on account of the failure of or delay in performance or breach by any other LenderAgent, the any other Agent Lender or Issuing Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents The Administrative 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. The Lenders and the Issuing Lenders hereby acknowledge that the Agents Administrative Agent shall be under no 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. Subject to the appointment and acceptance of a successor Administrative Agent as provided below, either the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint from the Lenders a successor Agent acceptable to the Borrowerssuccessor. 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 from the Lenders a successor AgentAdministrative Agent which shall be 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 affiliate of any such bank, which successor shall be acceptable to CBS (such acceptance not to be unreasonably withheld). Upon the acceptance of any appointment as Administrative Agent hereunder by a successor bank, such successor With respect shall succeed to and become vested with all the Loans made by it rights, powers, privileges and duties of the retiring Administrative Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After the Administrative Agent's resignation hereunder, each the provisions of the Agents, this Article and Section 9.5 shall continue in effect for its individual capacity and not as an 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 each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage benefit in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, 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) respect 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that while it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information was acting 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 Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunderAdministrative Agent.
Appears in 1 contract
Samples: Credit Agreement (CBS Corp)
The Agents. 31 28 In order to expedite the transactions contemplated by this Agreement, The Chase Manhattan Bank of Texas, National Association is hereby appointed to act as Administrative Agent Agent, and Chase Manhattan International Limited is hereby appointed to act as CAF London Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents each Agent to take such actions on behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is Agents are hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; . The Administrative Agent is hereby expressly authorized by the Lenders, without hereby limiting any implied authority, (a) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent or any with its agency hereunder; and (b) to distribute to each Lender copies of its all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by the Administrative Agent. Neither Agent, and none of their directors, officers, employees or agents agents, shall be liable to any Lender as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful 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 Borrowers Borrower of any of the terms, conditionsconditions (except delivery to the Administrative Agent of the items required by Article IV to be delivered to it), covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the The Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it them in good faith to be genuine and correct and to have been signed or sent by the proper person Person or personsPersons. No Agent or any Neither Agent, and none of its their directors, officers, employees or agents agents, shall have any responsibility to the Borrowers Borrower on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the The Agents 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 them with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it them in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it them pursuant to the provisions of this Agreement unless it they shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Administrative Agent or London Agent, as the case may be, as provided below, either Agent may resign at any time by notifying the Lenders and the BorrowersBorrower. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. 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 AgentAgent which shall be a bank with an office in New York, New York, or London, as the case may be, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank500,000,000. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agents, in its individual capacity retiring Agent and not as an the retiring Agent shall have the same rights be discharged from its duties and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their 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 an Agent. Each Lender agrees (i) to reimburse the Agents, 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 Borrowers and (i) to indemnify and hold harmless each of the Agents 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 no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunder.obligations 32 29
Appears in 1 contract
Samples: Term Loan Agreement (Goodyear Tire & Rubber Co /Oh/)
