The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing 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 2.05(j) and Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more subagents appointed by the Administrative Agent. The Administrative Agent and any such subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such subagent and to the Related Parties of each Administrative Agent and any such subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.

Appears in 4 contracts

Sources: Credit Agreement (Select Medical Corp), Credit Agreement (Select Medical Corp), Credit Agreement (Select Medical Holdings Corp)

Appears in 4 contracts

Sources: Credit Agreement (Time Warner Inc), Credit Agreement (Time Warner Inc), Credit Agreement (Aol Time Warner Inc)

Appears in 4 contracts

Sources: Amendment and Restatement Agreement (Limited Brands Inc), Amendment and Restatement Agreement (Limited Brands Inc), Amendment and Restatement Agreement (Limited Brands Inc)

Appears in 3 contracts

Sources: Credit Agreement (Time Warner Inc.), Credit Agreement (Time Warner Inc.), Credit Agreement (Time Warner Inc)

The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints the each of the Administrative Agent (it being understood that reference in this Article VIII to the Administrative Agent shall be deemed to include the Collateral Agent) and the Foreign Currency Agent as its agent and authorizes each of the Administrative Agent and the Foreign Currency Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent or the Foreign Currency Agent, as applicable, by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes~~ Each of ~~this Article VIII, all references to~~ the ~~Administrative Agent shall be deemed to be references to both~~ banks serving as the Administrative Agent and the ~~Collateral Agent. The bank serving as the Administrative~~ Foreign Currency Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent or the Foreign Currency Agent, as applicable, and each such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Holdings, the Parent Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent or the Foreign Currency Agent, as applicable, hereunder. The Administrative Agent and the Foreign Currency Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent and the Foreign Currency Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent and the Foreign Currency Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing ~~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 ~~2.05(j) and Section 9.02~~10.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent and the Foreign Currency Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Parent Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the ~~bank~~ banks serving as Administrative Agent and Foreign Currency Agent or any of ~~its~~ their Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~10.02) and neither the Administrative Agent nor the Foreign Currency Agent shall be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct. ~~The~~ Each of the Administrative Agent and the Foreign Currency Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Parent Borrower, a Subsidiary Term Borrower, a Foreign Subsidiary Borrower or a Lender, and neither the Administrative Agent nor the Foreign Currency Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan ~~Document~~Document or the occurrence of any Event of default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or the Foreign Currency Agent. ~~The~~ Each of the Administrative Agent and the Foreign Currency Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. ~~The~~ Each of the Administrative Agent and the Foreign Currency Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. ~~The~~ Each of the Administrative Agent and the Foreign Currency Agent may consult with legal counsel (who may be counsel for the Parent Borrower, a Subsidiary Term Borrower or any Foreign Subsidiary Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The~~ Each of the Administrative Agent and the Foreign Currency Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by the Administrative Agent or the Foreign Currency Agent, as applicable. ~~The~~ Each of the Administrative Agent, the Foreign Currency Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of each Administrative Agent, Foreign Currency Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent or Foreign Currency Agent, as applicable. ~~The~~ Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the ~~Borrower~~Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers). Upon any such resignation, the Required Lenders shall have the right, in consultation with the Parent Borrower and, if applicable, the relevant Subsidiary Term Borrower and Foreign Subsidiary Borrower, to appoint a ~~successor~~successor from among the Lenders. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers) to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers) and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~9.03~~ 10.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Subject to the appointment and acceptance of a successor Foreign Currency Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Administrative Agent and the Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers). Upon any such resignation, the Required Lenders shall have the right, in consultation with the Parent Borrower and, if applicable, the relevant Foreign Subsidiary Borrower, to appoint a successor from among the Lenders. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 10 days after the retiring Foreign Currency Agent gives notice of its resignation, then the retiring Foreign Currency Agent may, on behalf of the Lenders and the Administrative Agent, appoint a successor Foreign Currency Agent. Upon the acceptance of its appointment as Foreign Currency Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Foreign Currency Agent, and the retiring Foreign Currency Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Parent Borrower (on behalf of itself and the Foreign Subsidiary Borrowers) to a successor Foreign Currency Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Parent Borrower (on behalf of itself and the Foreign Subsidiary Borrowers) and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Foreign Currency Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Foreign Currency Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent, the Foreign Currency Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Foreign Currency Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.

Appears in 3 contracts

Sources: Replacement Facility Amendment (Trimas Corp), Incremental Facility Agreement (Trimas Corp), Credit Agreement (Trimas Corp)

The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent and Collateral Agent as its agent and authorizes the Administrative Agent and Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent and Collateral Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The Administrative Agent shall act as the Collateral Agent under the Loan Documents. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder, and without any duty to account therefor to the Lenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied ~~duties~~duties to any Lender or Issuing Bank, regardless of whether a Default or Event of Default has occurred and is continuing, (b) each Lender and Issuing Bank agrees (i) that the use of the term “agent” herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied or express obligations arising under agency doctrine of any applicable law, and is used solely as a matter of market custom to reflect an exclusively administrative relationship between contracting parties, and (ii) that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby, (c) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing 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 2.05(j) and Section 9.02), and (cd) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more subagents appointed by the Administrative Agent; provided, however, that the Loan Parties shall make all payments under any Loan Document directly to the Administrative Agent. The Administrative Agent and any such subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such subagent and to the Related Parties of each Administrative Agent and any such subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a ~~successor~~successor who shall either be (i) a “U.S. person” and a “financial institution” within the meaning of United States Treasury Regulations Section 1.1441-1 or (ii) a U.S. branch of a non-U.S. financial institution that has agreed to be treated as a “United States person” within the meaning of Section 7701(a)(30) of the Code. 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 and the Issuing Bank, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender and Issuing Bank (i) represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business, and that it is capable of evaluating and understanding the terms, conditions and risks of becoming a Lender and/or Issuing Bank, as applicable, under this Agreement, including in the context of related transactions to be entered into by the Borrower, and multiple roles to be performed by the Administrative Agent or its Affiliates, in connection herewith or therewith, and (ii) acknowledges that it has, independently and without reliance upon the Administrative ~~Agent or~~ Agent, any Arranger, any other Lender or any Related Party of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement~~. Each Lender also acknowledges that it~~ , and will, independently and without reliance upon the Administrative ~~Agent or~~ Agent, any Arranger, any other Lender or any Related Party of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into any and all documents with respect to Collateral and the rights of the Secured Parties with respect thereto (including the Intercreditor Agreement, any First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, if applicable) as contemplated by and in accordance with the provisions of this Agreement and the ~~Second Lien Intercreditor agreement,~~ Security Documents without any further consent from any Secured Party, which terms shall be reasonably satisfactory to Administrative Agent. No Person named as an Arranger in ~~connection with~~ this Agreement shall have any ~~incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby~~liability under this Agreement or any other Loan Document in its capacity as such.

Appears in 3 contracts

Sources: First Lien Credit Agreement (Select Medical Holdings Corp), First Lien Credit Agreement (Select Medical Corp), First Lien Credit Agreement (Select Medical 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 the Issuing Bank~~ hereby irrevocably ~~appoints the Administrative Agent as its agent and~~ authorizes the ~~Administrative Agent~~ Agents to take such actions on ~~its~~ behalf of such Lender or holder and to exercise such powers as are specifically delegated to the ~~Administrative Agent~~ Agents by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent ~~shall not have~~ is hereby expressly authorized by the Lenders and the CAF Agent, without hereby limiting any ~~duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing~~implied authority, (a) to receive on behalf of the 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 ~~shall not be subject to any fiduciary or other implied duties, regardless of whether a Default~~ has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise actual knowledge acquired 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 2.05(j) and Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative connection No Agent or any of its ~~Affiliates in any capacity. The Administrative Agent~~ directors, officers, employees or agents shall ~~not~~ be liable as such for any action taken or ~~not taken~~ omitted by ~~it with the consent~~ any of them except for its or ~~at the request of the Required Lenders (~~his or ~~such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its~~ her own gross negligence or willful misconduct~~. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings~~, ~~the Borrower~~ or ~~a Lender, and the Administrative Agent shall not~~ be responsible for ~~or have any duty to ascertain or inquire into (i)~~ any statement, warranty or representation ~~made in~~ herein or ~~in connection with any Loan Document, (ii)~~ the contents of any ~~certificate, report or other~~ document delivered ~~thereunder or~~ in connection ~~therewith~~herewith, ~~(iii)~~ or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the ~~covenants~~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 ~~terms~~ instruments or ~~conditions set forth in~~ agreements. The Agents may deem and treat the Lender which makes any Loan ~~Document~~as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, ~~(iv)~~ given as provided herein, of the ~~validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document~~transfer thereof. The Agents shall in all cases be fully protected in acting, or ~~(v)~~ refraining from acting, in accordance with written instructions signed by the ~~satisfaction~~ Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of ~~any condition set forth~~ the Agents shall, in ~~Article IV or elsewhere in any Loan Document, other than to confirm receipt~~ the absence of ~~items expressly required to be delivered~~ knowledge to the ~~Administrative Agent. The Administrative Agent shall~~ contrary, be entitled to rely ~~upon, and shall not incur~~ on any ~~liability for relying upon, any notice, request, certificate, consent, statement, instrument,~~ instrument or document ~~or other writing~~ believed by it in good faith to be genuine and correct and to have been signed or sent by the proper ~~Person~~person or persons. ~~The Administrative~~ No Agent ~~also~~ 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 ~~any statement made to it orally or by telephone and believed~~ the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or ~~not taken~~ suffered in good faith by it in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. The ~~Administrative Agent may perform~~ Lenders hereby acknowledge that the Agents shall be under no duty to take any ~~and all its duties and exercise its rights and powers~~ discretionary action permitted to be taken by ~~or through any one or more subagents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the ~~Administrative Agent~~Required Lenders. The Administrative Agent and any such subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such subagent and Subject to the ~~Related Parties~~ appointment and acceptance of ~~each Administrative~~ a successor Agent ~~and any such subagent~~as provided below, ~~and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative~~ either Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the ~~Borrower~~Borrowers. Upon any such resignation, the Required Lenders shall have the ~~right, in consultation with the Borrower,~~ right to appoint a ~~successor~~successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent may, on behalf of the ~~Lenders and the Issuing Bank~~Lenders, appoint a successor ~~Administrative Agent which shall be~~ Agent, having a ~~bank with an office in New York, New York,~~ combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of ~~its~~ any appointment as ~~Administrative~~ Agent hereunder by a ~~successor~~successor bank, such successor ~~shall succeed~~ With respect to ~~and become vested with all~~ the ~~rights~~Loans made by it hereunder, ~~powers, privileges and duties~~ each of the ~~retiring Administrative~~ 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 ~~retiring Administrative Agent~~ 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 be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunderhave been terminated, the ~~provisions~~ amount of ~~this Article and Section 9.03 shall continue in effect~~ its outstanding Loans) of any expenses incurred for the benefit of ~~such retiring Administrative~~ 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 ~~subagents~~ directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and ~~their respective Related Parties in respect~~ against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any ~~actions~~ 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 ~~taken by~~ 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 ~~them while it was acting as Administrative Agent~~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 ~~Administrative Agent~~ 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 ~~Administrative Agent~~ 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 or any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.

Appears in 2 contracts

Sources: Credit Facility Agreement (Texas Utilities Co /Tx/), Credit Facility Agreement (Tu Acquisitions PLC)

The Agents. Each of the Lenders ~~and the Issuing Bank~~ hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes ~~the Administrative~~ such Agent to take such actions on its behalf and to exercise such powers as are delegated to ~~the Administrative~~ such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes of this Article VIII~~In addition, ~~all references~~ to the ~~Administrative Agent shall be deemed~~ extent required under the laws of any jurisdiction, each of the Lenders hereby grants to ~~be references to both the Administrative Agent and~~ the Collateral ~~Agent~~Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. ~~The bank~~ Each of the banks serving as ~~the Administrative~~ 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 ~~the Administrative~~ an Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent under the ~~Administrative Agent hereunder~~Loan Documents. The ~~Administrative Agent~~ 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) the ~~Administrative Agent~~ Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the ~~Administrative Agent~~ 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 ~~Administrative~~ applicable Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~2.05(j~~8.02) ~~and Section 9.02)~~or, in the case of the Collateral Documents, the Required Secured Parties, and (c) except as expressly set forth in the Loan Documents, the ~~Administrative Agent~~ Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the ~~bank~~ banks serving as ~~Administrative Agent~~ Agents or any of ~~its~~ their respective Affiliates in any capacity. ~~The Administrative~~ No Agent shall ~~not~~ be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~8.02) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. ~~The Administrative~~ Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~Holdings,~~ the Borrower or a Lender, and the ~~Administrative Agent~~ Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document~~this Agreement, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or ~~document,~~ document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the ~~Administrative~~ applicable Agent. ~~The Administrative~~ 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. ~~The Administrative Agent~~ Each of the Agents also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. ~~The Administrative~~ 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 any such counsel, accountants or experts. ~~The Administrative Agent~~ 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 ~~subagents~~ sub-agents appointed by ~~the Administrative~~ such Agent. ~~The Administrative Agent~~ Each of the Agents and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of each ~~Administrative~~ Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as ~~Administrative~~ an Agent. ~~The Administrative~~ Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the Borrower, 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 ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent may, on behalf of the ~~Lenders and the Issuing Bank~~Lenders, appoint a successor ~~Administrative~~ Agent 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~~ an Agent ~~hereunder~~ by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations ~~hereunder~~under the Loan Documents. The fees payable by the Borrower to a successor ~~Administrative~~ Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After ~~the Administrative~~ such Agent’s resignation hereunder, the provisions of this Article and Section ~~9.03~~ 8.03 shall continue in effect for the benefit of such retiring ~~Administrative~~ Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as ~~Administrative~~ an Agent. Each Lender acknowledges that it has, independently and without reliance upon the ~~Administrative Agent~~ 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 ~~Administrative Agent~~ Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon ~~this Agreement~~any Loan Document, any ~~other Loan Document or~~ 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 ~~identified in this Agreement as a Syndication~~ hereby (a) agrees to be bound by the provisions of the Collateral Documents, including those terms thereof applicable to the Collateral Agent and ~~a Documentation~~ 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 ~~shall not have~~ to release any ~~right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting~~ Lien on any Collateral in accordance with the ~~foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender~~Collateral Documents. Each ~~Lender irrevocably~~ 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 ~~Administrative Agent may enter into the First Lien~~ provisions of such Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties therebyAgreement.

Appears in 2 contracts

Sources: Amendment and Restatement Agreement (Limited Brands Inc), Amendment and Restatement Agreement (Limited Brands Inc)

The Agents. ~~Each~~ In order to expedite the transactions contemplated by this Agreement, the Persons named in the heading of this Agreement are hereby appointed to act as Administrative Agent and London Agent on behalf of the Lenders and the Issuing Bank. Each of the Lenders, each assignee of any Lender and the Issuing Bank hereby irrevocably ~~appoints the Administrative Agent as its agent and~~ authorizes the ~~Administrative Agent~~ Agents to take such actions on ~~its~~ their behalf and to exercise such powers as are delegated to the ~~Administrative Agent~~ Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes~~ The Agents are hereby expressly authorized by the Lenders and the Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of ~~this Article VIII~~the Lenders and the Issuing Bank all payments of principal of and interest on the Loans and all other amounts due to the Lenders or the Issuing Bank hereunder, ~~all references~~ and promptly to distribute to each Lender or the Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default of which the Administrative Agent ~~shall be deemed~~ has actual knowledge acquired in connection with its agency hereunder; and (c) to ~~be references~~ distribute to ~~both~~ 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 and the Collateral~~ Agent. ~~The bank serving~~ With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as ~~the Administrative~~ Agent ~~hereunder~~ shall have the same rights and powers ~~in its capacity as a Lender~~ as any other Lender and may exercise the same as though it were not ~~the Administrative~~ an Agent, and ~~such bank~~ the Agents and ~~its~~ their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if it were not ~~the Administrative Agent hereunder~~an Agent. The ~~Administrative Agent~~ 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) ~~the Administrative~~ no Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative~~ no Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that ~~the Administrative~~ such Agent is required to exercise upon receipt of notice 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 ~~2.05(j) and Section 9.02~~11.02), and (c) except as expressly set forth in the Loan Documents, ~~the Administrative~~ no Agent shall ~~not~~ have any duty to disclose, and no Agent shall ~~not~~ be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower~~ Company or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the ~~bank~~ institution serving as ~~Administrative~~ Agent or any of its Affiliates in any capacity. ~~The Administrative~~ No Agent shall ~~not~~ be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~11.02) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. ~~The Administrative~~ No Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~Holdings, the Borrower or~~ a ~~Lender~~Borrower, and ~~the Administrative~~ no Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to ~~the Administrative~~ such Agent. ~~The Administrative~~ 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. ~~The Administrative~~ 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. ~~The Administrative~~ Each Agent may consult with legal counsel (who may be counsel for ~~the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The Administrative~~ Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by ~~the Administrative~~ such Agent. ~~The Administrative~~ Each Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of each ~~Administrative~~ Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as ~~Administrative~~ Agent. ~~The Administrative~~ 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 Bank and the ~~Borrower~~Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~Borrower~~Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor ~~Administrative~~ Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.~~ After the ~~Administrative~~ Agent’s 's resignation hereunder, the provisions of this Article and Section ~~9.03~~ 11.03 shall continue in effect for the benefit of such retiring ~~Administrative~~ Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as ~~Administrative~~ Agent. Each Lender acknowledges that it has, independently and without reliance upon the ~~Administrative Agent~~ 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 ~~Administrative Agent~~ Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. ~~The Lenders identified in~~ Each Lender hereby acknowledges that each institution named on the cover page of this Agreement as a Co-Syndication Agent ~~and~~ has no duties or responsibilities hereunder other than, in the case of a ~~Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no~~ Co-Syndication Agent ~~nor any Documentation Agent shall have or be deemed to have~~ that is a ~~fiduciary relationship with any~~ Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in ~~connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby~~its capacity as a Lender.

Appears in 2 contracts

Sources: Credit Agreement (Waters Corp /De/), Five Year Credit Agreement (Waters Corp /De/)

The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent and Collateral Agent as its agent and authorizes the Administrative Agent and Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent and Collateral Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The Administrative Agent shall act as the Collateral Agent under the Loan Documents. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder, and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders and the Issuing Banks (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing, (b) each Lender agrees (i) that the use of the term “agent” herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied or express obligations arising under agency doctrine of any applicable law, and is used solely as a matter of market custom to reflect an exclusively administrative relationship between contracting parties, and (ii) that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby, (c) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing 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 2.05(j) and Section 9.02), and (cd) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more subagents appointed by the Administrative Agent; provided, however, that the Loan Parties shall make all payments under any Loan Document directly to the Administrative Agent. The Administrative Agent and any such subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such subagent and to the Related Parties of each Administrative Agent and any such subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a ~~successor~~successor who shall either be (i) a “U.S. person” and a “financial institution” within the meaning of United States Treasury Regulations Section 1.1441-1 or (ii) a U.S. branch of a non-U.S. financial institution that has agreed to be treated as a “United States person” within the meaning of Section 7701(a)(30) of the Code. 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 and the Issuing Bank, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender and Issuing Bank (i) represents and warrants that (x) the Loan Documents set forth the terms of a commercial lending facility, (y) in participating as a Lender, it is engaged in making, acquiring or holding commercial loans and in providing other facilities set forth herein as may be applicable to such Lender or Issuing Bank, in each case in the ordinary course of its business, and not for the purpose of investing in the general performance or operations of the Borrower, or for the purpose of purchasing, acquiring or holding any other type of financial instrument such as a security (and each Lender and each Issuing Bank agrees not to assert a claim in contravention of the foregoing, such as a claim under the federal or state securities law), and (z) that it is capable of evaluating and understanding the terms, conditions and risks of becoming a Lender and/or Issuing Bank, as applicable, under this Agreement, including in the context of related transactions to be entered into by the Borrower, and multiple roles to be performed by the Administrative Agent or its Affiliates, in connection herewith or therewith, and (ii) acknowledges that it has, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Arranger or any other ~~Lender~~ Lender, and any of their respective Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement~~. Each Lender also acknowledges that it~~ , and will, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Arranger or any other Lender and any of their respective Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into any and all documents with respect to Collateral and the rights of the Secured Parties with respect thereto (including any First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, if applicable, and any release pursuant to Section 9.15 hereof) as contemplated by and in accordance with the provisions of this Agreement and the ~~Second Lien Intercreditor agreement,~~ Security Documents without any further consent from any Secured ~~Party, in connection with any incurrence by the Borrower of Permitted Debt Securities~~ Party and bind the Secured Parties thereby, which terms shall be reasonably satisfactory to Administrative Agent. No Person named as an Arranger, bookrunner, Co-Syndication Agent or Co-Documentation Agent in this Agreement shall have any liability under this Agreement or any other Loan Document in its capacity as such.

Appears in 2 contracts

Sources: Credit Agreement (Select Medical Holdings Corp), Credit Agreement (Concentra Group Holdings Parent, Inc.)

The Agents. In order to expedite the transactions contemplated by this Agreement, Chase is hereby appointed to act as Administrative Agent and CAF Agent on behalf of the Lenders. Each of the Lenders ~~and the Issuing Bank~~ hereby irrevocably ~~appoints the Administrative Agent as its agent and~~ authorizes the ~~Administrative Agent~~ Agents to take such actions on ~~its~~ behalf of such Lender or holder and to exercise such powers as are specifically delegated to the ~~Administrative Agent~~ Agents by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent ~~shall not have~~ is hereby expressly authorized by the Lenders and the CAF Agent, without hereby limiting any ~~duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing~~implied authority, (a) to receive on behalf of the 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; (b) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent ~~shall not be subject to any fiduciary or other implied duties, regardless of whether a Default~~ has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise actual knowledge acquired 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 2.05(j) and Section 9.02),~~ connection with its agency hereunder; and (c) ~~except~~ to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrowers pursuant to this Agreement as ~~expressly set forth in the Loan Documents,~~ received by the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent. No Agent or any of its ~~Affiliates in any capacity. The Administrative Agent~~ directors, officers, employees or agents shall ~~not~~ be liable as such for any action taken or ~~not taken~~ omitted by ~~it with the consent~~ any of them except for its or ~~at the request of the Required Lenders (~~his or ~~such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its~~ her own gross negligence or willful misconduct~~. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings~~, ~~the Borrower~~ or ~~a Lender, and the Administrative Agent shall not~~ be responsible for ~~or have any duty to ascertain or inquire into (i)~~ any statement, warranty or representation ~~made in~~ herein or ~~in connection with any Loan Document, (ii)~~ the contents of any ~~certificate, report or other~~ document delivered ~~thereunder or~~ in connection ~~therewith~~herewith, ~~(iii)~~ or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the ~~covenants~~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 ~~terms~~ instruments or ~~conditions set forth in~~ agreements. The Agents may deem and treat the Lender which makes any Loan ~~Document~~as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, ~~(iv)~~ given as provided herein, of the ~~validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document~~transfer thereof. The Agents shall in all cases be fully protected in acting, or ~~(v)~~ refraining from acting, in accordance with written instructions signed by the ~~satisfaction~~ Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of ~~any condition set forth~~ the Agents shall, in ~~Article IV or elsewhere in any Loan Document, other than to confirm receipt~~ the absence of ~~items expressly required to be delivered~~ knowledge to the ~~Administrative Agent. The Administrative Agent shall~~ contrary, be entitled to rely ~~upon, and shall not incur~~ on any ~~liability for relying upon, any notice, request, certificate, consent, statement, instrument,~~ instrument or document ~~or other writing~~ believed by it in good faith to be genuine and correct and to have been signed or sent by the proper ~~Person~~person or persons. ~~The Administrative~~ No Agent ~~also~~ 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 ~~any statement made to it orally or by telephone and believed~~ the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or ~~not taken~~ suffered in good faith by it in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. The ~~Administrative Agent may perform~~ Lenders hereby acknowledge that neither of the Agents shall be under any ~~and all its duties and exercise its rights and powers~~ duty to take any discretionary action permitted to be taken by ~~or through any one or more subagents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the ~~Administrative Agent~~Required Lenders. The Administrative Agent and any such subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such subagent and Subject to the ~~Related Parties~~ appointment and acceptance of ~~each Administrative~~ a successor Agent ~~and any such subagent~~as provided below, ~~and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative~~ either Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the ~~Borrower~~Borrowers. Upon any such resignation, the Required Lenders shall have the ~~right, in consultation with the Borrower,~~ right to appoint a ~~successor~~successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent may, on behalf of the ~~Lenders and the Issuing Bank~~Lenders, appoint a successor ~~Administrative Agent which shall be~~ Agent, having a ~~bank with an office in New York, New York,~~ combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of ~~its~~ any appointment as ~~Administrative~~ Agent hereunder by a ~~successor~~successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative Agent,~~ Agent and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.~~ After ~~the Administrative~~ any Agent’s 's resignation hereunder, the provisions of this Article and Section ~~9.03~~ 8.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Administrative Agent, its subagents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as ~~Administrative~~ Agent. 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 (ii) 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 B Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the ~~Administrative Agent~~ 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 ~~Administrative Agent~~ 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 or any ~~other Loan Document or~~ 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 ~~Lenders identified in this Agreement~~ Bank of New York, by virtue of its designation as ~~a Syndication Agent and a~~ "Documentation ~~Agent shall not~~ Agent", have any ~~right~~duties, ~~power~~liabilities, ~~obligation, liability, responsibility~~ obligations or ~~duty~~ responsibilities under this Agreement other than ~~those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have~~ as a ~~fiduciary relationship with any Lender. Each~~ Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties therebyhereunder.

Appears in 2 contracts

Sources: 364 Day Second Amended and Restated Competitive Advance and Revolving Credit Facility Agreement (Txu Electric Co), 364 Day Competitive Advance and Revolving Credit Facility Agreement (Txu Electric Co)

The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing 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 2.05(j) and Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more subagents appointed by the Administrative Agent. The Administrative Agent and any such subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such subagent and to the Related Parties of each Administrative Agent and any such subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to lo make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Issuing Bank shall act on behalf of the Lenders ~~identified~~ with respect to any Letters of Credit issued by it and the documents associated therewith, and the Issuing Bank shall have all of the benefits and immunities (i) provided to this Article VIII with respect to any acts taken or omissions suffered by the LC Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in this ~~Agreement~~ Article VIII included the Issuing Bank with respect to such acts or omissions, and (B) as a additionally provided herein with respect to the issuing Bank. The Arrangers and the Syndication ~~Agent~~ Agent, in their respective capacities as such, shall have no duties or responsibilities, and ~~a Documentation Agent~~ shall ~~not have any right, power, obligation,~~ incur no liability, ~~responsibility or duty~~ under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties therebyother Loan Documents.

Appears in 2 contracts

Sources: Credit Agreement (AGA Medical Holdings, Inc.), Credit Agreement (AGA Medical Holdings, Inc.)

The Agents. Each of the Lenders ~~and the Issuing Bank~~ hereby irrevocably appoints each of the ~~Administrative Agent~~ Agents as its agent and authorizes ~~the Administrative~~ each Agent to take such actions on its behalf and to exercise such powers as are delegated to ~~the Administrative~~ such Agent by the terms of the Loan ~~Documents~~Documents and the Guaranty, together with such actions and powers as are reasonably incidental thereto. ~~For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The~~ Each bank serving as ~~the Administrative~~ Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not ~~the Administrative~~ an Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of banking, trust or other business with the Borrower or any ~~Subsidiary~~ Fund Guarantor or any subsidiary or other Affiliate ~~thereof~~ of either as if it were not an Agent hereunder and may accept fees and other consideration from the ~~Administrative Agent hereunder~~Borrower or any Fund Guarantor for services in connection with the Loan Documents or the Guaranty or otherwise without having to account for the same to the Lenders. ~~The Administrative~~ Neither Agent shall ~~not~~ have any duties or obligations except those expressly set forth in the Loan ~~Documents~~Documents and the Guaranty. Without limiting the generality of the foregoing, (a) ~~the Administrative~~ neither Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative~~ neither Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents and the Guaranty that ~~the Administrative~~ such Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~2.05(j) and Section~~ 9.02), and (c) except as expressly set forth in the Loan ~~Documents~~Documents and the Guaranty, ~~the Administrative~~ neither Agent shall ~~not~~ have any duty to disclose, ~~and shall not~~ nor be liable for the failure to disclose, any information relating to ~~Holdings,~~ the Borrower or any Fund Guarantor or any of ~~the Subsidiaries~~ their subsidiaries that is communicated to or obtained by either of the ~~bank~~ banks serving as ~~Administrative~~ Agent or any of ~~its~~ their Affiliates in any capacity. ~~The Administrative~~ Neither Agent shall ~~not~~ be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or otherwise in the absence of its own gross negligence or willful ~~misconduct~~misconduct as determined in a final judgement by a court of competent jurisdiction. ~~The Administrative~~ Neither Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~Holdings,~~ the Borrower or a Lender, and ~~the Administrative~~ neither Agent shall ~~not~~ 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~~Document or the Guaranty, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan ~~Document~~Document or the Guaranty, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or the Guaranty or any other agreement, instrument or document, or the validity, perfection, or priority of any Lien created by any of the Security Documents, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan ~~Document~~Document or the Guaranty, other than to confirm receipt of items expressly required to be delivered to ~~the Administrative~~ such Agent. ~~The Administrative~~ 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. ~~The Administrative~~ 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. ~~The Administrative~~ Each Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~Borrower or any Fund Guarantor), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The Administrative~~ Each Agent may perform any of and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents or attorneys-in-fact appointed by ~~the Administrative~~ such Agent. ~~The Administrative~~ Each Agent and any such ~~subagent~~ sub-agent or attorney-in-fact 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 ~~subagent~~ sub-agent or attorney-in-fact and to the Related Parties of each ~~Administrative~~ such Agent and any such ~~subagent~~sub-agent or attorney-in-fact, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as ~~Administrative~~ an Agent. ~~The Administrative~~ Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the ~~Borrower~~Borrower and either Agent may be removed at any time with or without cause by the Required Lenders. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent may, on behalf of the ~~Lenders and the Issuing Bank~~Lenders, appoint a successor ~~Administrative~~ Agent ~~which~~ that 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 ~~hereunder~~ by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor ~~Administrative~~ Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After ~~the Administrative~~ an Agent~~’s resignation hereunder~~'s resignation, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring ~~Administrative~~ Agent, its ~~subagents~~ sub-agents and attorneys-in-fact and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as ~~Administrative~~ Agent. Each Lender acknowledges that it has, independently and without reliance upon ~~the Administrative~~ 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 Administrative~~ 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, any other Loan ~~Document~~ Document, the Guaranty or related agreement or any document furnished hereunder or thereunder. ~~The Lenders identified in this Agreement as a Syndication Agent~~ Except for action expressly required of either of the Agents by the Loan Documents and ~~a Documentation~~ the Guaranty, each Agent shall ~~not have any right, power, obligation, liability, responsibility~~ in all cases be fully justified in failing or ~~duty~~ refusing to act under ~~this Agreement other than those applicable~~ the Loan Documents and the Guaranty unless it shall receive further assurances to ~~all Lenders~~its satisfaction from the Lenders of their indemnification obligations under Section 9.03(c) hereof in respect of such action. Without limiting the foregoing, ~~no Syndication Agent nor any Documentation Agent~~ neither of the Agents shall have any liability or responsibility with respect to the sufficiency of the documents furnished pursuant to Section 4.01 hereof and shall not be ~~deemed~~ required to, and shall not, take any action to enforce any of its or the Lenders' rights under, nor waive or amend any provision of, this Agreement or any of the other Loan Documents or any collateral, nor give any notice or make any request or demand or filing thereunder, except in each instance as and to the extent instructed to do so by the Required Lenders, and neither of the Agents shall have any liability for failure to take any action in the absence of such instructions, provided that each Agent will promptly send to the Lenders and the other Agent a ~~fiduciary relationship with~~ copy of each notice, request or other document delivered to such Agent pursuant to the terms of this Agreement and other Loan Documents and will take such actions contemplated by the Loan Documents as the Required Lenders may reasonably instruct, except that nothing herein or in any ~~Lender~~other Loan Document shall require any Agent to take any action that in the reasonable opinion of such Agent would be contrary to the terms of this Agreement or applicable law or subject such Agent to personal liability. Each Lender ~~irrevocably agrees that~~ hereby acknowledges the Administrative Agent's agreements in Section 5 of the Guaranty and hereby expressly authorizes the Administrative Agent ~~may enter into~~ to act in accordance with each said Section 5. Each Lender hereby acknowledges the ~~First Lien~~ Administrative Agent's agreements in the Intercreditor Agreement, Section 5 of the Guaranty, Section 6.14 of the TPG Guaranty and each Section 6.15 of the GEI Guaranty and the TCW Guaranty, and hereby expressly authorizes the Administrative Agent to act in accordance with the Intercreditor Agreement and each said Section of the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties therebyGuaranty.

Appears in 2 contracts

Sources: Revolving Credit Agreement (Memc Electronic Materials Inc), Revolving Credit Agreement (Memc Electronic Materials Inc)

The Agents. Each Bank agrees with each Agent as follows: (a) The Carolinas Bank is hereby appointed Agent hereunder and under the Triarc Pledge Agreement, and the Florida Bank is hereby appointed Agent hereunder and under the Pechiney Pledge Agreement. Each of the ~~Lenders~~ Banks irrevocably authorizes the Agents to act as the agent of such Bank for the purposes of enforcing the rights and remedies of the Banks in respect of the Collateral and the ~~Issuing Bank hereby irrevocably appoints~~ Security Documents. Each Agent agrees to act as such upon the ~~Administrative~~ express conditions contained in this Section. (b) Each Agent ~~as its agent~~ shall have and ~~authorizes the Administrative Agent to take such actions on its behalf and to~~ may exercise such powers hereunder as are specifically delegated to ~~the Administrative~~ such Agent by the terms of hereof and the ~~Loan Documents~~applicable Security Document, together with such ~~actions and~~ powers as are reasonably incidental thereto. ~~For purposes of this Article VIII, all references~~ The Agents shall have no implied duties to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as Banks or any other ~~Lender and may exercise the same as though it were not the Administrative Agent~~person or entity, ~~and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower~~ or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty obligation to take any ~~discretionary~~ action hereunder or ~~exercise~~ under any ~~discretionary powers~~other Financing Document, except ~~discretionary rights~~ any action specifically provided by this Agreement and ~~powers expressly contemplated~~ the Security Documents to be taken by ~~the Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or~~ such ~~other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 2.05(j) and Section 9.02), and~~ Agent. (c) ~~except as expressly set forth~~ The Banks agree to reimburse and indemnify each Agent ratably in proportion to the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary Obligations owed under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into Credit Agreements (i) for any ~~statement, warranty or representation made in or in connection with~~ amounts not reimbursed by a Borrower for which an Agent is entitled to reimbursement by a Borrower under any ~~Loan~~ Financing Document, (ii) for any other expenses incurred by an Agent on behalf of the ~~contents of any certificate~~Banks, ~~report or other document delivered thereunder or~~ in connection ~~therewith~~with the preparation, execution, delivery, administration and enforcement of this Agreement or any Security Document, and (iii) for any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against an Agent in any way relating to or arising out of a Security Document, this Agreement or any other or the ~~performance~~ transactions contemplated hereby or ~~observance~~ the enforcement of any of the ~~covenants, agreements~~ terms hereof or ~~other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness~~ of any ~~Loan Document or any~~ such other ~~agreement~~documents, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent PROVIDED that no Bank shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more subagents appointed by the Administrative Agent. The Administrative Agent and any such subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the ~~preceding paragraphs shall apply to any such subagent and~~ foregoing to the ~~Related Parties~~ extent they arise from the gross negligence or willful misconduct of each Administrative Agent and any such subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative either Agent~~. The Administrative~~ . (d) Either Agent may resign at any time by ~~notifying~~ giving written notice thereof to the ~~Lenders, the Issuing Bank~~ Banks and the ~~Borrower~~Borrowers. Upon any such resignation, the ~~Required Lenders~~ Banks shall have the ~~right, in consultation with the Borrower,~~ right to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent mayappoint, on behalf of the ~~Lenders and the Issuing Bank~~Banks, ~~appoint~~ a successor ~~Administrative~~ Agent. Such successor Agent ~~which~~ shall be an affiliate of a ~~bank with an office in New York, New York,~~ Bank or an ~~Affiliate~~ Eligible Institution (as defined in each Credit Agreement) that owns all or part of ~~any such bank~~the Obligations. Upon the acceptance of ~~its~~ any appointment as ~~Administrative~~ an Agent hereunder by a ~~successor~~successor Agent, such successor Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations ~~hereunder. The fees payable by~~ hereunder and under the ~~Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor~~applicable Security Documents. After ~~the Administrative~~ any retiring Agent’s 's resignation ~~hereunder~~hereunder as Agent, the provisions of this ~~Article and~~ Section ~~9.03~~ shall continue in effect for ~~the~~ its benefit ~~of such retiring Administrative Agent, its subagents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as ~~Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative~~ an Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties therebyhereunder.

Appears in 2 contracts

Sources: Pledge and Security Agreement (DWG Acquisition Group L P), Pledge and Security Agreement (Triarc Companies Inc)

The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent.~~ The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not ~~the Administrative Agent~~serving in such agency capacity, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower or~~ Borrower, any Subsidiary or Enterprise GP or other Affiliate thereof as if it were not ~~the Administrative Agent~~ an agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that the Administrative Agent is required to exercise in writing ~~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 ~~2.05(j) and Section~~ 9.02), and (c) except as expressly set forth ~~in the Loan Documents~~herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings~~the Borrower, ~~the Borrower or~~ any of ~~the~~ its Subsidiaries or Enterprise GP that is communicated to or obtained by ~~the bank~~ any of them while serving as Administrative ~~Agent~~ Agent, as applicable, or by any of ~~its~~ their respective Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~Holdings,~~ the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document~~this Agreement, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to ~~the Administrative Agent~~them. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by ~~the Administrative Agent~~such Person. The Administrative Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of ~~each~~ the Administrative Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. ~~The~~ Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~in consultation~~ with the Borrower’s approval (which will not be unreasonably withheld or delayed, and the Borrower’s approval shall not be required if an Event of Default has occurred which is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, with the Borrower’s approval (which will not be unreasonably withheld or delayed, and the Borrower’s approval shall not be required if an Event of Default has occurred which is continuing), on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank and such bank, or its Affiliate, as applicable, shall have capital and surplus equal to or greater than $500,000,000. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative ~~Agent,~~ Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After ~~the Administrative Agent~~such agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. ~~The Lenders identified in this Agreement as a~~ Neither the Co-Documentation Agents nor the Syndication Agent ~~and a Documentation Agent~~ shall ~~not~~ have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all ~~Lenders~~Lenders as such. Without limiting the foregoing, no neither the Co-Documentation Agents nor the Syndication ~~Agent nor any Documentation~~ Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender ~~irrevocably agrees that~~ hereby makes the same acknowledgements with respect to each of the Co-Documentation Agents and the Syndication Agent as it makes with respect to the Administrative Agent ~~may enter into~~ in the ~~First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower~~ immediately preceding paragraph of ~~Permitted Debt Securities and bind the Secured Parties thereby~~this Article VIII.

Appears in 2 contracts

Sources: Credit Agreement (Enterprise GP Holdings L.P.), Credit Agreement (Enterprise GP Holdings L.P.)

Appears in 2 contracts

Sources: Term Loan Agreement (Reynolds American Inc), Term Loan Agreement (Reynolds American Inc)

The Agents. ~~Each~~ In order to expedite the transactions contemplated by this Agreement, the Persons named in the heading of this Agreement are hereby appointed to act as Administrative Agent and Canadian Administrative Agent on behalf of the Lenders and the Issuing Banks. Each of the Lenders, each assignee of any Lender and each Issuing Bank hereby irrevocably ~~appoints the Administrative Agent as its agent and~~ authorizes the ~~Administrative Agent~~ Agents to take such actions on ~~its~~ behalf of such Lender or assignee or Issuing Bank and to exercise such powers as are delegated to the ~~Administrative Agent~~ Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes~~ The Administrative Agent and, to the extent expressly provided herein, the Canadian Administrative Agent are hereby expressly authorized by the Lenders and the Issuing Banks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the Issuing Banks hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this ~~Article VIII, all references to~~ Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. 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 ~~deemed~~ sold, transferred or otherwise disposed of to ~~be references~~ a Person other than the 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 other Loan Documents (or any other similar term) with reference to ~~both~~ the Administrative Agent and the ~~Collateral Agent. The bank serving as the~~ Canadian Administrative Agent ~~hereunder~~ is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties. With respect to the Loans made by it under this Agreement, each Agent in its individual capacity and not as Agent shall have the same rights and powers ~~in its capacity as a Lender~~ as any other Lender and may exercise the same as though it were not ~~the Administrative~~ an Agent, and ~~such bank~~ the Agents and ~~its~~ 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 ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if it were not an Agent under the ~~Administrative Agent hereunder~~Loan Documents and without any duty to account therefor to the Lenders. The ~~Administrative Agent~~ Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents, and their duties under the Loan Documents shall be administrative in nature. Without limiting the generality of the foregoing, (a) ~~the Administrative~~ no Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative~~ no Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that ~~the Administrative~~ such Agent is required to exercise upon receipt of notice in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ 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 opinion or the opinion of its counsel, may expose such 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 ~~the circumstances as provided~~ any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in ~~Section 2.05(j) and Section 9.02)~~violation of any Debtor Relief Law, and (c) except as expressly set forth in the Loan Documents, ~~the Administrative~~ no Agent shall ~~not~~ have any duty to disclose, and no Agent shall ~~not~~ be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower~~ Company or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the ~~bank~~ institution serving as ~~Administrative~~ Agent or any of its Affiliates in any capacity. ~~The Administrative~~ No Agent shall ~~not~~ be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as such Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section ~~9.02~~10.02) or in the absence of its own gross ~~negligence~~ negligence, bad faith or willful misconduct. ~~The Administrative~~ No Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~Holdings, the Borrower or~~ a ~~Lender~~Borrower, and ~~the Administrative~~ no Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in herein or therein or the occurrence of any ~~Loan Document~~Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to ~~the Administrative~~ such Agent. ~~The Administrative~~ 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~~ signed, sent or ~~sent~~ otherwise authenticated by the proper Person. ~~The Administrative~~ 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. ~~The Administrative~~ In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or 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 ~~the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The Administrative~~ Each Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by ~~the Administrative~~ such Agent. ~~The Administrative~~ Each Agent and any such ~~subagent~~ sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs~~ this Article shall apply to any such ~~subagent~~ sub-agent and to the Related Parties of each ~~Administrative~~ Agent and any such ~~subagent~~sub-agent, 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 express provision hereof) to, communicate such proposed action or determination to the Lenders prior to 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. ~~The Administrative~~ 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 ~~Bank~~ Banks and the ~~Borrower~~Company. Upon any such resignation, the Company shall have the right, with the consent of the Required Lenders (not to be unreasonably withheld or 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 ~~Borrower~~Company, to appoint a such successor. If no successor shall have been so appointed by the Company (or, if applicable, the Required ~~Lenders~~ Lenders) and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent ~~may~~may (but shall not be obligated to), on behalf of the Lenders and the Issuing ~~Bank~~Banks, appoint a successor ~~Administrative~~ Agent which shall be a bank with an office in New York, New ~~York~~York or Toronto or London, as applicable, or an Affiliate of any such bank. Upon the acceptance of its appointment as ~~Administrative~~ Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Company to a successor ~~Administrative~~ Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Company and such successor. After the ~~Administrative~~ Agent’s resignation hereunder, the provisions of this Article and Section ~~9.03~~ 10.03 shall continue in effect for the benefit of such retiring ~~Administrative~~ Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as ~~Administrative~~ Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.

Appears in 2 contracts

Sources: Credit Agreement (Molson Coors Brewing Co), Credit Agreement (Molson Coors Brewing Co)

Appears in 2 contracts

Sources: Credit Agreement (Time Warner Inc), Credit Agreement (Time Warner Inc)

The Agents. Each of the Lenders ~~and the Issuing Bank~~ hereby irrevocably appoints each of the ~~Administrative Agent~~ Agents as its agent and authorizes ~~the Administrative~~ each Agent to take such actions on its behalf and to exercise such powers as are delegated to ~~the Administrative~~ such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The~~ Each bank serving as ~~the Administrative~~ Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not ~~the Administrative~~ an Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of banking, trust or other business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent hereunder and may accept fees and other consideration from the ~~Administrative Agent hereunder~~Borrower for services in connection with the Loan Documents or otherwise without having to account for the same to the Lenders. ~~The Administrative~~ Neither Agent shall ~~not~~ have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) ~~the Administrative~~ neither Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative~~ neither Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that ~~the Administrative~~ such Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~2.05(j) and Section 9.02~~10.02), and (c) except as expressly set forth in the Loan Documents, ~~the Administrative~~ neither Agent shall ~~not~~ have any duty to disclose, ~~and shall not~~ nor be liable for the failure to disclose, any information relating to ~~Holdings,~~ the Borrower or any of the Subsidiaries that is communicated to or obtained by either of the ~~bank~~ banks serving as ~~Administrative~~ Agent or any of ~~its~~ their Affiliates in any capacity. ~~The Administrative~~ Neither Agent shall ~~not~~ be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~10.02) or otherwise in the absence of its own gross negligence or willful ~~misconduct~~misconduct as determined in a final judgement by a court of competent jurisdiction. ~~The Administrative~~ Neither Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~Holdings,~~ the Borrower or a Lender, and ~~the Administrative~~ neither Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or the validity, perfection, or priority of any Lien created by any of the Security Documents, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to ~~the Administrative~~ such Agent. ~~The Administrative~~ 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. ~~The Administrative~~ 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. ~~The Administrative~~ 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 any such counsel, accountants or experts. ~~The Administrative~~ Each Agent may perform any of and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents or attorneys-in-fact appointed by ~~the Administrative~~ such Agent. ~~The Administrative~~ Each Agent and any such ~~subagent~~ sub-agent or attorney-in-fact 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 ~~subagent~~ sub-agent or attorney-in-fact and to the Related Parties of each ~~Administrative~~ such Agent and any such ~~subagent~~sub-agent or attorney-in-fact, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as ~~Administrative~~ an Agent. ~~The Administrative~~ Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, either Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the ~~Borrower~~Borrower and either Agent may be removed at any time with or without cause by the Required Lenders. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent may, on behalf of the ~~Lenders and the Issuing Bank~~Lenders, appoint a successor ~~Administrative~~ Agent ~~which~~ that 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 ~~hereunder~~ by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor ~~Administrative~~ Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After ~~the Administrative~~ an Agent~~’s resignation hereunder~~'s resignation, the provisions of this Article and Section ~~9.03~~ 10.03 shall continue in effect for the benefit of such retiring ~~Administrative~~ Agent, its ~~subagents~~ sub-agents and attorneys-in-fact and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as ~~Administrative~~ Agent. Each Lender acknowledges that it has, independently and without reliance upon ~~the Administrative~~ 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 Administrative~~ 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, any other Loan Document or related agreement or any document furnished hereunder or thereunder. ~~The Lenders identified in this Agreement as a Syndication Agent and a Documentation~~ Except for action expressly required of either of the Agents by the Loan Documents, each Agent shall ~~not have any right, power, obligation, liability, responsibility~~ in all cases be fully justified in failing or ~~duty~~ refusing to act under ~~this Agreement other than those applicable~~ the Loan Documents unless it shall receive further assurances to ~~all Lenders~~its satisfaction from the Lenders of their indemnification obligations under Section 10.03(c) hereof in respect of such action. Without limiting the foregoing, ~~no Syndication Agent nor any Documentation Agent~~ neither of the Agents shall have any liability or responsibility with respect to the sufficiency of the documents furnished pursuant to Section 4.01 hereof and shall not be ~~deemed~~ required to, and shall not, take any action to enforce any of its or the Lenders' rights under, nor waive or amend any provision of, this Agreement or any of the other Loan Documents or any collateral, nor give any notice or make any request or demand or filing thereunder, except in each instance as and to the extent instructed to do so by the Required Lenders, and neither of the Agents shall have any liability for failure to take any action in the absence of such instructions, provided that each Agent will promptly send to the Lenders and the other Agent a ~~fiduciary relationship with any Lender. Each Lender irrevocably agrees that~~ copy of each notice, request or other document delivered to such Agent pursuant to the ~~Administrative Agent may enter into the First Lien Intercreditor~~ terms of this Agreement and ~~the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence~~ other Loan Documents and will take such actions contemplated by the ~~Borrower~~ Loan Documents as the Required Lenders may reasonably instruct, except that nothing herein or in any other Loan Document shall require any Agent to take any action that in the reasonable opinion of ~~Permitted Debt Securities and bind~~ such Agent would be contrary to the ~~Secured Parties thereby~~terms of this Agreement or applicable law or subject such Agent to personal liability.

Appears in 2 contracts

Sources: Revolving Credit Agreement (Memc Electronic Materials Inc), Revolving Credit Agreement (Memc Electronic Materials Inc)

The Agents. Each of the Lenders and the Issuing ~~Bank~~ Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~For purposes~~ Each of ~~this Article VIII, all references~~ the Canadian Lenders hereby irrevocably appoints the Canadian Agent as its agent and authorizes the Canadian Agent to take such actions on its behalf and to exercise such powers as are delegated to the ~~Administrative~~ Canadian Agent ~~shall be deemed~~ by the terms hereof, together with such actions and powers as are reasonably incidental thereto. Each of the UK Lenders hereby irrevocably appoints the UK Agent as its agent and authorizes the UK Agent to ~~be references~~ take such actions on its behalf and to ~~both~~ exercise such powers as are delegated to the ~~Administrative~~ UK Agent by the terms hereof, together with such actions and ~~the Collateral Agent~~powers as are reasonably incidental thereto. ~~The~~ Each bank serving as ~~the Administrative~~ 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 ~~the Administrative~~ such Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if it were not ~~the Administrative~~ an Agent hereunder. The ~~Administrative Agent~~ Agents shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, (a) ~~the Administrative~~ no Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative~~ no Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that ~~the Administrative~~ such Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~2.05(j) and Section 9.02~~11.02), and (c) except as expressly set forth ~~in the Loan Documents~~herein, ~~the Administrative~~ no Agent shall ~~not~~ have any duty to disclose, ~~and~~ or shall ~~not~~ be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower~~ Company or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as ~~Administrative~~ such Agent or any of its Affiliates in any capacity. ~~The Administrative~~ No Agent shall ~~not~~ be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~11.02) or in the absence of its own gross negligence or willful misconduct. ~~The Administrative~~ No Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~Holdings, the~~ a Borrower or a Lender, and ~~the Administrative~~ no Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document~~this Agreement, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to ~~the Administrative~~ such Agent. ~~The Administrative~~ 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. ~~The Administrative~~ 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. ~~The Administrative~~ Each Agent may consult with legal counsel (who may be counsel for ~~the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The Administrative~~ Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by ~~the Administrative~~ such Agent. ~~The Administrative~~ Each Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of each ~~Administrative~~ Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as ~~Administrative~~ an Agent. ~~The Administrative~~ 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 ~~Bank~~ Banks (in the case of the Administrative Agent) and the ~~Borrower~~Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~Borrower~~Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent may, on behalf of the Lenders and the Issuing ~~Bank~~Banks (in the case of a successor Administrative Agent), appoint a successor Agent, which, in the case of the Administrative Agent ~~which~~ shall be a bank with an office in New York, New York, or an Affiliate of any such bank; in the case of the Canadian Agent, shall be a bank with an office in Toronto, Canada, or an Affiliate of any such bank; and in the case of the UK Agent, shall be a bank with an office in London, England, or an Affiliate of any such bank. The appointment of a successor Canadian Agent or UK Agent shall be subject to the consent of the Administrative Agent (such consent not to be unreasonably withheld). Upon the acceptance of its appointment as ~~Administrative~~ an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~the~~ any Borrower to a successor ~~Administrative~~ Agent shall be the same as those payable to its predecessor unless otherwise agreed between ~~the~~ such Borrower and such successor. After ~~the Administrative~~ an Agent’s resignation hereunder, the provisions of this Article and Section ~~9.03~~ 11.03 shall continue in effect for the benefit of such retiring ~~Administrative~~ Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as ~~Administrative~~ an Agent. Each Lender acknowledges that it has, independently and without reliance upon ~~the Administrative~~ 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 Administrative~~ any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.

Appears in 2 contracts

Sources: Credit Agreement (Yellow Roadway Corp), Credit Agreement (Yellow Roadway Corp)

The Agents. Each of the Lenders ~~and the Issuing Bank~~ hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such 100 powers as are delegated to ~~the Administrative~~ such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The bank~~ Any Person serving as ~~the~~ an Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not ~~the Administrative~~ an Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Parent or any Subsidiary or other Affiliate thereof as if it were not ~~the Administrative~~ an Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing ~~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 2.05(j) and~~ Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower~~ Parent or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the ~~bank~~ Person serving as ~~Administrative~~ Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~Holdings, the Borrower~~ a Loan Party or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Parent or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. 101 The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by ~~the Administrative~~ such Agent. The Administrative Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of ~~each~~ the Administrative Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as ~~Administrative~~ Agent. ~~The Administrative~~ Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, an Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the ~~right, in consultation with the Borrower,~~ right to appoint a ~~successor~~successor with the approval of the Borrower (which approval shall not be unreasonably withheld or delayed and, if an Event of Default has occurred and is continuing, shall not be required). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent may, on behalf of the ~~Lenders and the Issuing Bank~~Lenders, appoint a successor ~~Administrative~~ Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor ~~Administrative~~ Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After ~~the Administrative~~ an Agent’s 's resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring ~~Administrative~~ Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as ~~Administrative~~ Agent. Each Lender acknowledges that it has, independently and without reliance upon ~~the Administrative~~ 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 Administrative~~ any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. ~~The Lenders~~ None of the Persons identified in from time to time on the facing pages or signature pages of, or otherwise in, this Agreement as a ~~Syndication Agent and~~ "co-agent," an "arranger," a ~~Documentation Agent~~ "syndication agent," a "book manager," a "documentation agent" or a "co-documentation agent" shall ~~not~~ have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all ~~Lenders~~Lenders as such. Without limiting the foregoing, ~~no Syndication Agent nor any Documentation Agent~~ none of the Lenders so identified as a "co-agent," an "arranger," a "syndication agent," a "book manager," a "documentation agent" or a "co-documentation agent" shall have or be deemed to have a any fiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders so identified in deciding to enter into this Agreement or in taking or not taking action hereunder. 102 Each Lender hereby irrevocably ~~agrees that~~ authorizes the Collateral Trustee to take the following actions and hereby irrevocably authorizes the Administrative Agent, on behalf of such Lender, to direct the Collateral Trustee (and the Administrative Agent ~~may enter into~~ agrees to so direct the ~~First~~ Collateral Trustee) to take such actions, at the request of the Borrower in respect of any and all Liens granted to the Collateral Trustee pursuant to the Security Documents: (i) to release such Liens insofar as they attach to property that is sold, leased, or otherwise disposed of in a transaction not prohibited by Section 6.04(b), (ii) to release such Liens upon any and all property of the Loan Parties (and to terminate the trust under the Trust Agreement) upon payment in full of the Loans, LOC Obligations and all other amounts (other than contingent or indemnity obligations which by their terms survive the termination of this Agreement) to be paid pursuant to the Loan Documents and upon termination of the Commitments, (iii) to release or, at the option of the Borrower, to subordinate such Liens, upon the request of the Borrower, insofar as they attach to any property that is the subject of a Purchase Money Lien ~~Intercreditor Agreement~~ listed on Schedule 6.02(iv) (as from time to time supplemented by the Borrower) and the ~~Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower~~ proceeds of ~~Permitted Debt Securities and bind the Secured Parties thereby~~such property.

Appears in 2 contracts

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

The Agents. Each of the Lenders and ~~the~~ each Issuing Bank hereby irrevocably ~~appoints~~ appoint the U.S. Administrative Agent ~~as its agent~~ and ~~authorizes the~~ Canadian Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to ~~the Administrative~~ each such Agent by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent.~~ The bank serving as the U.S. Administrative Agent and the bank serving as the Canadian Administrative Agent hereunder shall each have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not ~~the Administrative~~ an Agent, and each such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if it were not ~~the Administrative~~ an Agent hereunder. The ~~Administrative Agent~~ Agents shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, (a) ~~the Administrative~~ neither Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative~~ neither Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that ~~the Administrative~~ such Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~2.05(j~~10.02) ~~and Section 9.02),~~ and (c) except as expressly set forth ~~in the Loan Documents~~herein, ~~the Administrative~~ neither Agent shall ~~not~~ have any duty to disclose, and neither Agent shall ~~not~~ be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower~~ Company or any ~~of the Subsidiaries~~ Subsidiary that is communicated to or obtained by ~~the~~ such bank serving as ~~Administrative~~ an Agent or any of its Affiliates in any capacity. ~~The Administrative~~ Neither Agent shall ~~not~~ be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~10.02) or in the absence of its own gross negligence or willful misconduct. ~~The Administrative~~ Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~Holdings, the~~ a Borrower or a Lender, and ~~the Administrative~~ neither Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document~~this Agreement, (ii) the contents of any certificate, report or other document delivered ~~thereunder or~~ hereunder in connection ~~therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to ~~the Administrative~~ such Agent. ~~The Administrative~~ 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. ~~The Administrative~~ 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. ~~The Administrative~~ Each Agent may consult with legal counsel (who may be counsel for ~~the~~ either Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The Administrative~~ Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by ~~the Administrative~~ such Agent. ~~The Administrative~~ Each Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of each ~~Administrative~~ Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as ~~Administrative~~ Agent. ~~The Administrative~~ Subject to the appointment and acceptance of a successor as provided in this paragraph, either Agent may resign at any time by notifying the Lenders, ~~the~~ each Issuing Bank and the ~~Borrower~~Company. Upon any such resignation, the Required Lenders shall have the ~~right, in consultation with the Borrower,~~ right to appoint a ~~successor~~successor acceptable to the Company. 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 and ~~the~~ each Issuing Bank, appoint a successor ~~Administrative~~ Agent which shall be a bank with an office in New York, New York, if such successor bank is the U.S. Administrative Agent, or Toronto, if such successor bank is the Canadian Administrative Agent, but, in each case, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of its appointment as ~~Administrative~~ Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Company to a successor ~~Administrative~~ Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Company and such successor. After ~~the Administrative~~ an Agent’s resignation hereunder, the provisions of this Article IX and Section ~~9.03~~ 10.03 shall continue in effect for the benefit of such retiring ~~Administrative~~ Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as ~~Administrative~~ such Agent. Each Lender acknowledges that it has, independently and without reliance upon ~~the Administrative~~ 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 Administrative~~ 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, any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.

Appears in 2 contracts

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

Appears in 2 contracts

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

The Agents. ~~Each~~ In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, on behalf of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably ~~appoints the Administrative Agent as its agent and~~ authorizes the ~~Administrative Agent~~ Agents to take such actions on ~~its~~ behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the ~~Administrative Agent~~ Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes~~ The Administrative Agent and, to the extent expressly provided herein, the London Agent are hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of ~~this Article VIII~~the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all ~~references~~ payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. 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 ~~be deemed to be references to both~~ have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the ~~Collateral Agent~~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. ~~The bank serving~~ With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as ~~the Administrative~~ Agent ~~hereunder~~ shall have the same rights and powers ~~in its capacity as a Lender~~ as any other Lender and may exercise the same as though it were not ~~the Administrative~~ an Agent, and ~~such bank~~ the Agents and ~~its~~ their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if it were not ~~the Administrative Agent hereunder~~an Agent. The ~~Administrative Agent~~ 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) ~~the Administrative~~ no Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative~~ no Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the ~~Administrative~~ Agent is required to exercise upon receipt of notice 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 ~~2.05(j) and Section 9.02~~10.02), and (c) except as expressly set forth in the Loan Documents, ~~the Administrative~~ no Agent shall ~~not~~ have any duty to disclose, and no Agent shall ~~not~~ be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower~~ Company or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the ~~bank~~ institution serving as ~~Administrative~~ Agent or any of its Affiliates in any capacity. ~~The Administrative~~ No Agent shall ~~not~~ be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~10.02) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. ~~The Administrative~~ No Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~Holdings,~~ the ~~Borrower~~ Company or a Lender, and ~~the Administrative~~ no Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to ~~the Administrative~~ such Agent. ~~The Administrative~~ 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. ~~The Administrative~~ 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. ~~The Administrative~~ Each Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The Administrative~~ Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by ~~the Administrative~~ such Agent. ~~The Administrative~~ Each Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of each ~~Administrative~~ Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit ~~facilities~~ facility provided for herein as well as activities as ~~Administrative~~ Agent. ~~The Administrative~~ 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 ~~Bank~~ Banks and the ~~Borrower~~Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~Borrower~~Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent may, on behalf of the Lenders and the Issuing ~~Bank~~Banks, appoint a successor ~~Administrative~~ Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.~~ After the ~~Administrative~~ Agent’s 's resignation hereunder, the provisions of this Article and Section ~~9.03~~ 10.03 shall continue in effect for the benefit of such retiring ~~Administrative~~ Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as ~~Administrative~~ Agent. Each Lender acknowledges that it has, independently and without reliance upon the ~~Administrative Agent~~ 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 ~~Administrative Agent~~ Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.

Appears in 2 contracts

Sources: Revolving Credit Facility Agreement (Albany International Corp /De/), Revolving Credit Facility Agreement (Albany International Corp /De/)

The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing 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 2.05(j) and Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 2.05(j) or Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more subagents appointed by the Administrative Agent. The Administrative Agent and any such subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such subagent and to the Related Parties of each Administrative Agent and any such subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Each of the Lenders, the Issuing Bank and the Loan Parties agree that the Administrative Agent may, subject to Section 9.01(b), but shall not be obligated to, make the Approved Electronic Communications available to the Lenders and the Issuing Bank by posting such Approved Electronic Communications on IntraLinks™ or a substantially similar secure electronic platform chosen by the Administrative Agent to be its electronic transmission system (the “Approved Electronic Platform”) and each of the Loan Parties agrees to make the Approved Electronic Communications available to the Administrative Agent in an acceptable soft copy or electronic format. Although the Approved Electronic Platform and its primary web portal are secured with generally-applicable security procedures and policies implemented or modified by the Administrative Agent from time to time (including, as of the Effective Date, a dual firewall and a User ID/Password Authorization System) and the Approved Electronic Platform is secured through a single-user-per-deal authorization method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders and the Issuing Bank and the Loan Parties acknowledge and agree that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution. In consideration for the convenience and other benefits afforded by such distribution and for the other consideration provided hereunder, the receipt and sufficiency of which is hereby acknowledged, each of the Lenders, the Loan Parties and the Issuing Bank hereby approve distribution of the Approved Electronic Communications through the Approved Electronic Platform and understands and assumes the risks of such distribution. The Approved Electronic Communications and the Approved Electronic Platform are provided “as is” and “as available”. None of the Administrative Agent or any of its Affiliates or any of their respective officers, directors, employees, agents, advisors or representatives (the “Agent Affiliates”) warrant the accuracy, adequacy or completeness of the Approved Electronic Communications and the Approved Electronic Platform and each expressly disclaims liability for errors or omissions in the Approved Electronic Communications and the Approved Electronic Platform. No warranty of any kind, express, implied or statutory (including, without limitation, any warranty of merchantability, fitness for a particular purpose, noninfringement of third party rights or freedom from viruses or other code defects) is made by the Agent Affiliates in connection with the Approved Electronic Communications or the Approved Electronic Platform. Each of the Lenders, the Issuing Bank, and the Loan Parties agrees that the Administrative Agent may, but (except as may be required by applicable law) shall not be obligated to, store the Approved Electronic Communications on the Approved Electronic Platform in accordance with the Administrative Agent’s generally-applicable document retention procedures and policies. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~in consultation~~ with the consent of the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a the Syndication Agent and a the Documentation ~~Agent~~ Agents shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no neither the Syndication Agent nor ~~any~~ the Documentation ~~Agent~~ Agents shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.

Appears in 2 contracts

Sources: Credit Agreement (Symbion Inc/Tn), Credit Agreement (NeoSpine Surgery, LLC)

The Agents. Each of the Lenders ~~and the Issuing Bank~~ hereby irrevocably appoints ~~the Administrative~~ each Agent as its agent and authorizes ~~the Administrative~~ each Agent to take such actions on its behalf and to exercise such powers as are delegated to ~~the Administrative~~ such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The bank~~ Any Person serving as ~~the Administrative~~ 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 ~~the Administrative~~ an Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Parent or any Subsidiary or other Affiliate thereof as if it were not ~~the Administrative~~ an Agent hereunder. ~~The Administrative~~ Neither Agent shall ~~not~~ have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) ~~the Administrative~~ neither Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative~~ neither Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that ~~the Administrative~~ such Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~2.05(j) and Section~~ 9.02), and (c) except as expressly set forth in the Loan Documents, ~~the Administrative~~ neither Agent shall ~~not~~ have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower~~ Parent or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the ~~bank~~ Person serving as ~~Administrative~~ Agent or any of its Affiliates in any capacity. ~~The Administrative~~ Neither Agent shall ~~not~~ be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. ~~The Administrative~~ Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~Holdings, the Borrower~~ a Loan Party or a Lender, and ~~the Administrative~~ neither Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other ~~agreement,~~ agreement instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to ~~the Administrative~~ such Agent. ~~The Administrative~~ 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. ~~The Administrative~~ 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. ~~The Administrative~~ Each Agent may consult with legal counsel (who may be counsel for the Parent or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The Administrative~~ Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by ~~the Administrative~~ such Agent. ~~The Administrative~~ Each Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of each ~~Administrative~~ Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as ~~Administrative~~ Agent. ~~The Administrative~~ Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, an Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the ~~right, in consultation with the Borrower,~~ right to appoint a ~~successor~~successor with the approval of the Borrower (which approval shall not be unreasonably withheld or delayed and, if an Event of Default has occurred and is continuing, shall not be required). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent may, on behalf of the ~~Lenders and the Issuing Bank~~Lenders, appoint a successor ~~Administrative~~ Agent with the approval of the Borrower (which approval shall not be unreasonably withheld or delayed and, if an Event of Default has occurred and is continuing, shall not be required) 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor ~~Administrative~~ Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After ~~the Administrative~~ an Agent’s 's resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring ~~Administrative~~ Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as ~~Administrative~~ Agent. Each Lender acknowledges that it has, independently and without reliance upon ~~the Administrative~~ 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 Administrative~~ 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, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.

Appears in 2 contracts

Sources: Credit Agreement (Jato Communications Corp), Credit Agreement (Jato Communications Corp)

The Agents. Citicorp North America, Inc. is hereby appointed to act as Administrative Agent and Collateral Agent on behalf of the Lenders. Each of the Lenders and ~~the Issuing Bank~~ each assignee of any such Lender, hereby irrevocably ~~appoints~~ authorizes each of the ~~Administrative Agent as its agent and authorizes the Administrative Agent~~ Agents to take such actions on ~~its~~ behalf of such Lender or assignee and to exercise such powers as are specifically delegated to ~~the Administrative~~ such Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes~~ Each Agent is hereby expressly authorized by the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders all payments of principal of and interest on the Loans, all payments and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to any of the Borrower of any Default specified in this Agreement of which such 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 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 by any of them except 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 any Loan Party of any of the terms, conditions, covenants or agreements contained in any 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. Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the 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 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. None of the Agents nor any of their Related Parties shall have any responsibility to the Loan Parties on account of the failure of or delay in performance or breach by any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or the Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. Each Agent may execute any and all duties hereunder by Table of Contents or through any of its Related Parties or 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 no Agent shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of any Loan Document unless it shall be requested in writing to do so by the Requisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, any Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Requisite Lenders shall have the right to appoint a successor. If no successor shall have been so appointed by the 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 Lenders and the Issuing Bank, 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 $500.0 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 ~~VIII, all references~~ 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 ~~Administrative~~ Loans made by it hereunder, each Agent ~~shall be deemed to be references to both the Administrative~~ in its individual capacity and not as an Agent ~~and the Collateral Agent. The bank serving as the Administrative Agent hereunder~~ shall have the same rights and powers ~~in its capacity as a Lender~~ as any other Lender and may exercise the same as though it were not ~~the Administrative~~ an Agent, and such ~~bank~~ Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing 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 2.05(j) and Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more subagents appointed by the Administrative Agent. The Administrative Agent and any such subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such subagent and to the Related Parties of each Administrative Agent and any such subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon ~~the Administrative~~ 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 Administrative~~ 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 or any other Loan ~~Document or~~ Document, any related agreement or any document furnished hereunder or thereunder. ~~The Lenders identified~~ Notwithstanding anything to the contrary in this ~~Agreement~~ Agreement, neither of SSBI or DBSI, each as a Joint Lead Arranger, in such capacity, nor DBSI, as Syndication ~~Agent and a~~ Agent, or Table of Contents JPMorgan, as Documentation ~~Agent~~ Agent, shall ~~not~~ have any ~~right~~obligations, ~~power~~duties or responsibilities, ~~obligation~~and shall incur any liabilities, ~~liability, responsibility or duty~~ under this Agreement or any other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties therebyLoan Document.

Appears in 2 contracts

Sources: Credit Agreement (Constar Inc), Credit Agreement (Constar International Inc)

The Agents. Each of the Lenders ~~and the Issuing Bank~~ hereby irrevocably appoints ~~the Administrative~~ each Agent as its agent and authorizes ~~the Administrative~~ each Agent to take such actions on its behalf and to exercise such powers as are delegated to ~~the Administrative~~ such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The bank~~ Any Person serving as ~~the Administrative~~ 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 ~~the Administrative~~ an Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Parent or any Subsidiary or other Affiliate thereof as if it were not ~~the Administrative~~ an Agent hereunder. ~~The Administrative~~ Neither Agent shall ~~not~~ have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) ~~the Administrative~~ neither Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative~~ neither Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that ~~the Administrative~~ such Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~2.05(j) and Section~~ 9.02), and (c) except as expressly set forth in the Loan Documents, ~~the Administrative~~ neither Agent shall ~~not~~ have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower~~ Parent or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the ~~bank~~ Person serving as ~~Administrative~~ Agent or any of its Affiliates in any capacity. ~~The Administrative~~ Neither Agent shall ~~not~~ be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. ~~The Administrative~~ Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~Holdings, the Borrower~~ a Loan Party or a Lender, and ~~the Administrative~~ neither Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to ~~the Administrative~~ such Agent. ~~The Administrative~~ 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. ~~The Administrative~~ 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. ~~The Administrative~~ Each Agent may consult with legal counsel (who may be counsel for the Parent or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The Administrative~~ Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by ~~the Administrative~~ such Agent. ~~The Administrative~~ Each Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of each ~~Administrative~~ Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as ~~Administrative~~ Agent. ~~The Administrative~~ Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, an Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the ~~right, in consultation with the Borrower,~~ right to appoint a ~~successor~~successor with the approval of the Borrower (which approval shall not be unreasonably withheld or delayed and, if an Event of Default has occurred and is continuing, shall not be required). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent may, on behalf of the ~~Lenders and the Issuing Bank~~Lenders, appoint a successor ~~Administrative~~ Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor ~~Administrative~~ Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After ~~the Administrative~~ an Agent’s 's resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring ~~Administrative~~ Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as ~~Administrative~~ Agent. Each Lender acknowledges that it has, independently and without reliance upon ~~the Administrative~~ 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 Administrative~~ either Agent or any other Lender and based on such documents and ~~information~~ informa tion as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.

Appears in 2 contracts

Sources: Credit Agreement (Winstar Communications Inc), Credit Agreement (Winstar Communications Inc)

The Agents. Each of the Lenders and the Issuing ~~Bank~~ Banks hereby irrevocably appoints the Administrative Agent and the London Agent as its agent and authorizes the Administrative Agent and the London Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent or the London Agent, as applicable, by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent.~~ The bank serving as ~~the Administrative~~ 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 ~~the Administrative~~ an Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if it were not ~~the Administrative~~ an Agent hereunder. ~~The Administrative~~ No Agent shall ~~not~~ have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, (a) the ~~Administrative Agent~~ Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the ~~Administrative Agent~~ 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~~ hereby that ~~the Administrative~~ an Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~2.05(j) and Section 9.02~~10.02), and (c) except as expressly set forth ~~in the Loan Documents~~herein, the ~~Administrative Agent~~ Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower~~ Company or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as ~~Administrative~~ an Agent or any of its Affiliates in any capacity. ~~The Administrative~~ No Agent shall ~~not~~ be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~10.02) or in the absence of its own gross negligence or willful misconduct. The ~~Administrative Agent~~ Agents shall be deemed ~~not~~ to have no knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower~~ Company or a Lender, and the ~~Administrative Agent~~ Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document~~this Agreement, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the ~~Administrative Agent~~Agents. ~~The Administrative~~ Each party to this Agreement acknowledges that neither the Syndication Agent nor the Co-Documentation Agents shall have any duties, responsibilities, obligations or authority under this Agreement in such capacity. 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. ~~The Administrative~~ 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. ~~The Administrative~~ Each Agent may consult with legal counsel (who may be counsel for ~~the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The Administrative~~ Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by ~~the Administrative Agent~~it. ~~The Administrative~~ Each Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of ~~each Administrative Agent~~ the Agents and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as ~~Administrative~~ an Agent. ~~The Administrative~~ Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, each Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the ~~Borrower~~Company. Upon any such resignation, the ~~Required Lenders~~ Company shall have the right, in consultation with the ~~Borrower~~Required Lenders, to appoint a successor. If no successor shall have been so appointed by the ~~Required Lenders~~ Company and shall have accepted such appointment within 30 days after ~~the~~ such retiring ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent may, on behalf of the Lenders and the Issuing ~~Bank~~Banks, appoint a successor ~~Administrative~~ Agent 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~~ an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Company to a successor ~~Administrative~~ Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Company and such successor. After ~~the Administrative~~ an Agent’s resignation hereunder, the provisions of this Article and Section ~~9.03~~ 10.03 shall continue in effect for the benefit of such retiring ~~Administrative~~ Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as ~~Administrative~~ an Agent. Each Lender acknowledges that it has, independently and without reliance upon ~~the Administrative~~ 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 Administrative~~ any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.

Appears in 2 contracts

Sources: Credit Agreement (Brown Forman Corp), Credit Agreement (Brown Forman Corp)

The Agents. Each of the Lenders and ~~the~~ each Issuing Bank hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent as its agent and authorizes ~~the Administrative~~ such Agent to take such actions on its behalf and to exercise such powers as are delegated to ~~the Administrative~~ such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes of this Article VIII~~In addition, ~~all references~~ to the ~~Administrative Agent shall be deemed~~ extent required under the laws of any jurisdiction, each of the Lenders hereby grants to ~~be references to both the Administrative Agent and~~ the Collateral ~~Agent~~Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such ▇▇▇▇▇▇’s behalf. ~~The bank~~ Each of the banks serving as ~~the Administrative~~ 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 ~~the Administrative~~ an Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if it were not an Agent under the ~~Administrative Agent hereunder~~Loan Documents. The ~~Administrative Agent~~ 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) the ~~Administrative Agent~~ Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the ~~Administrative Agent~~ 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 ~~Administrative~~ applicable Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~2.05(j~~8.02 or Section 8.02A) ~~and Section 9.02)~~or, in the case of the Collateral Documents, the Required Secured Parties, and (c) except as expressly set forth in the Loan Documents, the ~~Administrative Agent~~ Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower~~ Company or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the ~~bank~~ banks serving as ~~Administrative Agent~~ Agents or any of ~~its~~ their respective Affiliates in any capacity. ~~The Administrative~~ No Agent shall ~~not~~ be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~8.02 or Section 8.02A) or, in the case of the Collateral Documents, the Required Secured Parties, or in the absence of its own gross negligence or willful misconduct. ~~The Administrative~~ Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~Holdings,~~ the ~~Borrower~~ Company or a Lender, and the ~~Administrative Agent~~ Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document~~this Agreement, (ii) the contents of any ~~certificate~~certificate (including any Borrowing Base Certificate), report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~with any Loan Document, (iii) qualification of (or lapse of any qualification of) any Account, Credit Card Receivable, Inventory or real property under the eligibility criteria set forth herein, other than eligibility criteria expressly referring to the matters described therein being acceptable or satisfactory to, or being determined by, the Collateral Agent, (iv) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (ivv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or ~~document,~~ document or (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the ~~Administrative~~ applicable Agent. ~~The Administrative~~ Notwithstanding anything herein to the contrary, the Agents shall not be liable for, or be responsible for any loss, cost or expense suffered by the Borrowers, any Lender or any Issuing Bank as a result of, any such determination of the Credit Exposure, Excess Availability, the Borrowing Base or the component amounts of any thereof. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, ~~certificate~~certificate (including any Borrowing Base Certificate), consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. ~~The Administrative Agent~~ Each of the Agents also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. ~~The Administrative~~ Each Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The Administrative Agent~~ Each Lender and Issuing Bank hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of any Agent; (b) the Agents (i) make no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to any Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and any Person performing any field examination will inspect only specific information regarding the Loan Parties and will rely significantly upon the Loan Parties’ books and records, as well as on representations of the Loan Parties’ personnel, and that the Agents undertake no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use and not share any Report with any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, it will pay and protect, and indemnify, defend and hold the Agents, each other Person preparing a Report and the Related Parties of any of the foregoing harmless from and against, the claims, actions, proceedings, damages, costs, expenses and other amounts (including reasonable attorney fees) incurred by any of them as the direct or indirect result of any third parties who obtain all or part of any Report through the indemnifying Lender. 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 ~~subagents~~ sub-agents appointed by ~~the Administrative~~ such Agent. ~~The Administrative Agent~~ Each of the Agents and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of each ~~Administrative~~ Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as ~~Administrative~~ an Agent. ~~The Administrative~~ Subject to the appointment and acceptance of a successor Agent ~~may~~ as provided in this paragraph, either Agent ▇▇▇ resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the ~~Borrower~~Company. Upon any such resignation, the Required Lenders (or, in the case of the Collateral Agent, the Required Secured Parties) shall have the right, in consultation with the ~~Borrower~~Company, to appoint a successor. In addition, if either Agent 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 Company 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 ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent may, on behalf of the Lenders and the Issuing ~~Bank~~Banks, appoint a successor ~~Administrative~~ Agent 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~~ an Agent ~~hereunder~~ by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations ~~hereunder~~under the Loan Documents. The fees payable by the ~~Borrower~~ Company to a successor ~~Administrative~~ Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Company and such successor. After ~~the Administrative~~ such Agent’s resignation hereunder, the provisions of this Article and Section ~~9.03~~ 8.03 shall continue in effect for the benefit of such retiring ~~Administrative~~ Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as ~~Administrative~~ an Agent. Each Lender acknowledges that it has, independently and without reliance upon the ~~Administrative Agent~~ 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 ~~Administrative Agent~~ 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~~any Loan Document, any ~~other Loan Document or~~ 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) (each of the foregoing, in its capacity as such, a “Titled Person”), 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 ~~identified~~ 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 (i) release any Liens on any Non-ABL Priority Collateral in accordance with an Intercreditor Agreement and (ii) release any Liens on any Collateral in accordance with the Collateral Documents, including any Liens on real property following the delivery of a Real Property Exclusion Notice. 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 ▇▇▇▇▇ contemplated by clause (b)(ix) or (b)(x) 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. It is understood and agreed by the parties hereto, that as part of its duties and functions, the Collateral Agent shall serve as the hypothecary representative for itself and for all present and future Secured Parties, as contemplated by Article 2692 of the Civil Code of Québec (the “CCQ”). For greater certainty, and without limiting the powers of the Collateral Agent, each of the Lenders and the Issuing Banks hereby irrevocably appoints the Collateral Agent as hypothecary representative for all present and future Lenders, Issuing Banks and any other Secured Parties as contemplated under Article 2692 of the CCQ in order to hold the hypothecs granted under any Loan Document pursuant to the laws of the Province of Quebec to secure performance of all or part of the Obligations (as defined in each such Loan Document) and to exercise such powers and duties which are conferred upon the hypothecary representative thereunder. The appointment of the Collateral Agent as hypothecary representative shall be deemed to have been ratified and confirmed by each Person that accedes or has acceded to this Agreement as a ~~Syndication~~ Lender or Issuing Bank after the date hereof. The Loan Parties hereby acknowledge the appointment of the Collateral Agent ~~and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting~~ as the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower hypothecary representative of ~~Permitted Debt Securities and bind~~ the Secured Parties ~~thereby~~as contemplated under Article 2692 of the CCQ. In the event of the resignation of the Collateral Agent and appointment of a successor Collateral Agent, such successor Collateral Agent shall also act as hypothecary representative without further act or formality being required to appoint such successor Collateral Agent as the successor hypothecary representative for the purposes of any then existing deeds of hypothec. The execution by the Collateral Agent as the hypothecary representative of the relevant deeds of hypothec or other relevant documentation prior to the date hereof is hereby ratified and confirmed by each Lender and Issuing Bank. In its capacity of hypothecary representative, the Collateral Agent shall (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted hereunder, all rights and remedies given to the hypothecary representative pursuant to any hypothec, applicable law or otherwise, (b) benefit from and be subject to all provisions hereof with respect to the Collateral Agent, mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the Lenders and the Issuing Banks, and (c) be entitled to delegate from time to time any of its powers or duties under any deed of hypothec or other Loan Document, on such terms and conditions as it may determine from time to time.

Appears in 2 contracts

Sources: Amendment No. 2 to the Revolving Credit Agreement (Victoria's Secret & Co.), Amended and Restated Revolving Credit Agreement (Bath & Body Works, Inc.)

The Agents. Each of the Lenders and the Issuing ~~Bank~~ Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto~~. For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent~~. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Parent Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing ~~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 ~~2.05(j) and Section 9.02~~10.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the Parent Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~10.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default (other than a Default of a scheduled payment hereunder owing to the Administrative Agent on behalf of the Lenders) unless and until written notice thereof is given to the Administrative Agent by ~~Holdings, the~~ a Primary Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by the Administrative Agent. The Administrative Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of each Administrative Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. ~~The~~ Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the Parent Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Parent Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing ~~Bank~~Banks, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Parent Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Parent Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~9.03~~ 10.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The provisions of this Article applicable to the Administrative Agent also shall be applicable to the Collateral Agent, mutatis mutandis. Each of the Lenders and Issuing Banks agrees to the terms and conditions of the Global Collateral Sharing Agreement applicable to the Collateral Agent. The entity identified in on the cover page of this Agreement as ~~a Syndication Agent and a Documentation Agent~~ the Co-Lead Arranger shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all ~~Lenders~~Lenders as such. Without limiting the foregoing, ~~no Syndication Agent nor any Documentation Agent~~ the Co-Lead Arranger shall ~~have~~ not have, or be deemed to ~~have~~ have, a fiduciary relationship with any Lender. Each ~~Lender~~ of the Fondé de Pouvoir Parties hereby irrevocably constitute JPMorgan Chase Bank, N.A. as the holder of an irrevocable power of attorney (fondé de pouvoir within the meaning of Article 2692 of the Civil Code of Québec) in order to hold hypothecs and security granted by the Borrowers on property pursuant to the laws of the Province of Québec in order to secure obligations of the Borrowers under any bond, debenture or similar title of indebtedness issued by the Borrowers, and hereby agrees that JPMorgan Chase Bank, N.A., as Administrative Agent, may act as the bondholder and mandatary (i.e. agent) with respect to any bond, debenture or similar title of indebtedness that may be issued by the Borrowers and pledged in favour of JPMorgan Chase Bank, N.A., as Administrative Agent, for the benefit of the Fondé de Pouvoir Parties. The execution by JPMorgan Chase Bank, N.A., acting as fondé de pouvoir and mandatary, prior to this Agreement , of any deeds of hypothec or other security documents is hereby ratified and confirmed. Notwithstanding the provisions of Section 32 of An Act respecting the special powers of legal persons (Québec), JPMorgan Chase Bank, N.A. may acquire and be the holder of any bond issued by the Borrowers. The constitution of JPMorgan Chase Bank, N.A. as fondé de pouvoir, and of the Administrative Agent as bondholder and mandatary with respect to any bond that may ~~enter into~~ be issued and pledged from time to time for the ~~First Lien Intercreditor~~ benefit of the Fondé de Pouvoir Parties, shall be deemed to have been ratified and confirmed by each Person accepting an assignment of, a participation in or an arrangement in respect of, all or any part of a Fondé de Pouvoir Party’s interest in this Agreement by the execution of an assignment, including an Assignment and Assumption, or other agreement pursuant to which it becomes such assignee, and by each successor Administrative Agent by the execution of an assignment agreement or other agreement pursuant to which it becomes a successor Administrative Agent. JPMorgan Chase Bank, N.A., acting as fondé de pouvoir, shall have the same rights, powers, immunities, indemnities and exclusions from liability as are prescribed in favour of the Administrative Agent and the Collateral Agent in this Agreement and the ~~Second Lien Intercreditor agreement~~Collateral Sharing Agreement, ~~without any further consent from any Secured Party~~which shall apply mutatis mutandis. Without limitation, ~~in connection with any incurrence by~~ the ~~Borrower~~ provisions of ~~Permitted Debt Securities~~ this Article VIII shall apply mutatis mutandis to the resignation and ~~bind the Secured Parties thereby~~appointment of a successor to acting as fondé de pouvoir.

Appears in 2 contracts

Sources: Credit Agreement (Mosaic Co), Credit Agreement (Mosaic Co)

The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing 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 2.05(j) and Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more subagents appointed by the Administrative Agent; provided, however, that the Loan Parties shall make all payments under any Loan Document directly to the Administrative Agent. The Administrative Agent and any such subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such subagent and to the Related Parties of each Administrative Agent and any such subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a ~~successor~~successor who shall either be (i) a “U.S. person” and a “financial institution” within the meaning of United States Treasury Regulations Section 1.1441-1 or (ii) a U.S. branch of a non-U.S. financial institution that has agreed to be treated as a “United States person” within the meaning of Section 7701(a)(30) of the Code. 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 and the Issuing Bank, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into any and all documents with respect to Collateral and the rights of the Secured Parties with respect thereto (including the Intercreditor Agreement, any First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, if applicable) as contemplated by and in accordance with the provisions of this Agreement and the ~~Second Lien Intercreditor agreement,~~ Security Documents without any further consent from any Secured Party, which terms shall be reasonably satisfactory to Administrative Agent. No Person named as an Arranger or bookrunner in ~~connection with~~ this Agreement shall have any ~~incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby~~liability under this Agreement or any other Loan Document in its capacity as such.

Appears in 2 contracts

Sources: First Lien Credit Agreement (Select Medical Corp), First Lien Credit Agreement (Select Medical Corp)

The Agents. Each of the Lenders ~~and the Issuing Bank~~ hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The~~ Each bank serving as ~~the Administrative~~ 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 ~~the Administrative~~ an Agent, and such bank and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~the Borrower~~ any Company or ~~any Subsidiary or other~~ Affiliate thereof as if it were not an Agent hereunder and without any duty to account therefor to the ~~Administrative Agent hereunder~~Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the ~~Loan~~ other Credit Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the ~~Loan~~ other Credit Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (~~or such other number or percentage of~~ or, if so specified by this Agreement, all the ~~Lenders as shall be necessary under the circumstances as provided in Section 2.05(j~~Lenders) ~~and Section 9.02),~~ and (c) except as expressly set forth herein and in the ~~Loan~~ other Credit Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings, the Borrower~~ any Company or any of ~~the Subsidiaries~~ its Affiliates that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or, if so specified by this Agreement, all the Lenders, or ~~such other number or percentage of~~ as the ~~Lenders as~~ Administrative Agent shall believe in good faith shall be ~~necessary~~ necessary, under the circumstances as provided in Article VII and Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~Holdings~~any Borrower, ~~the Borrower~~ or a ~~Lender~~Lender or an Issuing Bank, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any ~~Loan~~ other Credit Document, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ under any Credit Document or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in the Credit Documents or the occurrence of any ~~Loan Document~~Default, (iv) the validity, enforceability, effectiveness or genuineness of any ~~Loan~~ Credit Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message) believed by it to be genuine and to have been ~~signed~~ signed, sent or ~~sent~~ otherwise authenticated by a proper Person. An initial list of the proper ~~Person~~Persons with respect to the Borrowers appears on Schedule 8. Schedule 8 shall not be altered except in writing by a Person appearing thereon (or by a successor to such Person occupying the equivalent office). The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying ~~thereon~~thereon so long as such statement, in the case of a Borrowing Request, complies with the requirements of Section 2.03 in all material respects (it being understood that oral notices of borrowing will be confirmed in writing by such Borrower in accordance with Section 2.03). In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder or under any other Credit Document by or through any one or more ~~subagents~~ sub-agents appointed by the Administrative Agent. The Administrative Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of ~~each~~ the Administrative Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. ~~The~~ Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the ~~Borrower~~Borrowers. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~Borrower~~Borrowers, to appoint a ~~successor~~successor which, so long as no Event of Default is continuing, shall be reasonably 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 Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Bank~~Lenders, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder or under the other Credit Documents. The fees payable by the ~~Borrower~~ Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Borrowers and such successor; provided that the predecessor Administrative Agent shall pay the unearned portion of any fees paid in advance to either the successor Administrative Agent or the Borrowers. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Administrative Agent. Any resignation by Citibank, N.A. as Administrative Agent pursuant to this Article VIII shall also constitute its resignation as a Swingline Lender. Upon the acceptance of a successor’s appointment as a Swingline Lender the retiring Swingline Lender shall be discharged from all of its duties and obligations hereunder or under the other Credit Documents. The Lenders agree to indemnify each Agent in its capacity as such (to the extent not reimbursed by the Borrowers and without limiting the obligation of the Borrowers to do so), ratably according to their Commitments in effect (or at any time after the Commitments have terminated, their Revolving Credit Exposures) on the date on which indemnification is sought under this Article VIII (or, if indemnification is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with their Commitments (or, if the Commitments have terminated earlier, their Revolving Credit Exposures) immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted against such Agent in any way relating to or arising out of, the Commitments, this Agreement, any of the other Credit Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by such Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from such Agent’s gross negligence or willful misconduct. The agreements in this paragraph shall survive the payment of the Loans and all other amounts payable hereunder. Each Lender acknowledges that it has, independently and without reliance upon ~~the Administrative~~ 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 Administrative~~ any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. The ~~Lenders identified in this Agreement as a~~ Joint-Lead Arrangers, Joint Bookrunners, Co-Syndication ~~Agent~~ Agents and a Co-Documentation ~~Agent~~ Agents shall not have any ~~right, power, obligation, liability, responsibility~~ duties or ~~duty~~ responsibilities under ~~this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor~~ any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, Credit Document in ~~connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby~~their capacity as such.

Appears in 1 contract

Sources: Credit Agreement (Time Warner Inc.)

The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent and Collateral Agent as its agent and authorizes the Administrative Agent and Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent and Collateral Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The Administrative Agent shall act as the Collateral Agent under the Loan Documents. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder, and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing, (b) each Lender agrees (i) that the use of the term “agent” herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied or express obligations arising under agency doctrine of any applicable law, and is used solely as a matter of market custom to reflect an exclusively administrative relationship between contracting parties, and (ii) that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby, (c) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing 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 2.05(j) and Section 9.02), and (ccd) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more subagents appointed by the Administrative Agent; provided, however, that the Loan Parties shall make all payments under any Loan Document directly to the Administrative Agent. The Administrative Agent and any such subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such subagent and to the Related Parties of each Administrative Agent and any such subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a ~~successor~~successor who shall either be (i) a “U.S. person” and a “financial institution” within the meaning of United States Treasury Regulations Section 1.1441-1 or (ii) a U.S. branch of a non-U.S. financial institution that has agreed to be treated as a “United States person” within the meaning of Section 7701(a)(30) of the Code. 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 and the Issuing Bank, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender and Issuing Bank (i) represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business, and that it is capable of evaluating and understanding the terms, conditions and risks of becoming a Lender and/or Issuing Bank, as applicable, under this Agreement, including in the context of related transactions to be entered into by the Borrower, and multiple roles to be performed by the Administrative Agent or its Affiliates, in connection herewith or therewith, and (ii) acknowledges that it has, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Arranger or any other ~~Lender~~ Lender, and any of their respective Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it it, and will, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Arranger or any other Lender and any of their respective Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into any and all documents with respect to Collateral and the rights of the Secured Parties with respect thereto (including any First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, if applicable, and any release pursuant to Section 9.15 hereof) as contemplated by and in accordance with the provisions of this Agreement and the ~~Second Lien Intercreditor agreement,~~ Security Documents without any further consent from any Secured ~~Party, in connection with any incurrence by the Borrower of Permitted Debt Securities~~ Party and bind the Secured Parties thereby, which terms shall be reasonably satisfactory to Administrative Agent. No Person named as an Arranger, bookrunner, Co-Syndication Agent or Co-Documentation Agent in this Agreement shall have any liability under this Agreement or any other Loan Document in its capacity as such.

Appears in 1 contract

Sources: Credit Agreement (Select Medical Corp)

Appears in 1 contract

Sources: Term Loan and Revolving Credit Agreement (Goodyear Tire & Rubber Co /Oh/)

Appears in 1 contract

Sources: Credit Agreement (Belo a H Corp)

The Agents. Each of the Lenders ~~and the Issuing Bank~~ hereby irrevocably appoints ~~the Administrative Agent~~ JPMorgan Chase Bank as its agent and authorizes ~~the Administrative Agent~~ JPMorgan Chase Bank to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~For purposes~~ Each Lender acknowledges that Citibank N.A. and The Bank of ~~this Article VIII, all references to the Administrative Agent~~ Nova Scotia shall be ~~deemed~~ Co-Syndication Agents with respect to this Agreement and that Credit Suisse First Boston and Mizuho Corporate Bank, Ltd. shall be ~~references~~ Co-Documentation Agents with respect to ~~both the Administrative Agent and the Collateral Agent~~this Agreement. The Co-Syndication Agents and Co-Documentation Agents shall have no duties in such capacities in addition to any duties in their capacity as Lenders. Each bank serving as ~~the Administrative~~ 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 ~~the Administrative~~ an Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not ~~the Administrative~~ an Agent hereunder. ~~The Administrative~~ No Agent shall ~~not~~ have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, (a) ~~the Administrative~~ no Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative~~ no Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that the Administrative Agent is required to exercise in writing ~~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 2.05(j) and Section 9.02)~~entitled to so require, and (c) except as expressly set forth ~~in the Loan Documents~~herein, ~~the Administrative~~ no Agent shall ~~not~~ have any duty to disclose, ~~and~~ nor shall ~~not~~ such Agent be liable for the failure to disclose, any information relating to ~~Holdings,~~ the Borrower or any of the Subsidiaries that is communicated to or obtained by ~~the bank serving as Administrative~~ such Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the ~~Required~~ Lenders ~~(or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02)~~ entitled to so require or in the absence of its own gross negligence or willful misconduct. ~~The Administrative~~ No Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~Holdings,~~ the Borrower or a Lender, and ~~the Administrative~~ no Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made to any Lender in or in connection with ~~any Loan Document~~this Agreement, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~herewith, (iii) the performance or observance by the Borrower of any of the covenants, agreements or other terms or or, except as provided in clause (v) below, conditions set forth ~~in any Loan Document~~herein, (iv) with respect to parties other than such Agent, the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. ~~The Administrative~~ 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 in good faith to be genuine and to have been signed or sent by the proper Person. ~~The Administrative~~ Each Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. ~~The Administrative~~ 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 good faith in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by the Administrative ~~Agent~~Agent and for which it is responsible. The Administrative Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent reasonably selected by the Administrative Agent and to the Related Parties of ~~each Administrative Agent~~ the Agents and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as ~~Administrative~~ Agent. ~~The~~ Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the Borrower. Upon any such resignation, the ~~Required~~ Majority Lenders shall have the right, ~~in consultation~~ with the ~~Borrower~~consent of the Borrower (which consent shall not be required if at the time of such appointment any Default or Event of Default shall have occurred and be continuing), to appoint a successor. If no successor shall have been so appointed by the ~~Required~~ Majority Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Bank~~Lenders, appoint a successor Administrative Agent which shall be a commercial bank with an office in New York, New ~~York, or an Affiliate~~ York and having a combined capital and surplus of ~~any such bank~~at least $1,000,000,000. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring Administrative Agent, its subagents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon ~~the Administrative~~ 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 represents that it has not relied upon the Unrestricted Margin Stock in its credit analysis or its decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon ~~the Administrative~~ any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.

Appears in 1 contract

Sources: 364 Day Revolving Credit Agreement (CSX Corp)

The Agents. Each of the Lenders ~~and the Issuing Bank~~ hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The~~ Each bank serving as ~~the Administrative~~ 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 ~~the Administrative~~ an Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Borrower~~ any Company or ~~any Subsidiary or other~~ Affiliate thereof as if it were not ~~the Administrative~~ an Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (~~or such other number or percentage of~~ or, if so specified by this Agreement, all the ~~Lenders as shall be necessary under the circumstances as provided in Section 2.05(j) and Section 9.02~~Lenders), and (c) except as expressly set forth ~~in the Loan Documents~~herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings, the Borrower or~~ any ~~of the Subsidiaries~~ Company that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (~~or such other number or percentage of~~ or, if so specified by this Agreement, all the ~~Lenders as shall be necessary under the circumstances as provided in Section 9.02~~Lenders) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~Holdings, the~~ any Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any ~~Loan~~ other Credit Document, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ under any Credit Document or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in ~~any Loan~~ the Credit Document, (iv) the validity, enforceability, effectiveness or genuineness of any ~~Loan~~ Credit Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by a proper Person. An initial list of the proper ~~Person~~Persons with respect to the Borrowers appears on Schedule 8. Schedule 8 shall not be altered except in writing by a Person appearing thereon (or by a successor to such Person occupying the equivalent office). The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying ~~thereon~~thereon so long as such statement, in the case of a Borrowing Request, complies with the requirements of Section 2.03 in all material respects (it being understood that oral notices of borrowing will be confirmed in writing by such Borrower in accordance with Section 2.03). The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by the Administrative Agent. The Administrative Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of ~~each~~ the Administrative Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. ~~The~~ Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the ~~Borrower~~Borrowers. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~Borrower~~Borrowers, to appoint a ~~successor~~successor which, so long as no Event of Default is continuing, shall be reasonably 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 Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Bank~~Lenders, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Borrowers and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Administrative Agent. The Lenders agree to indemnify each Agent in its capacity as such (to the extent not reimbursed by the Borrowers and without limiting the obligation of the Borrowers to do so), ratably according to their Commitments in effect (or at any time after the Commitments have terminated, their Revolving Credit Exposure) on the date on which indemnification is sought under this Section (or, if indemnification is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with their Commitments (or, if the Commitments have terminated earlier, their Revolving Credit Exposures) immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted against such Agent in any way relating to or arising out of, the Commitments, this Agreement, any of the other Credit Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by such Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from such Agent's gross negligence or willful misconduct. The agreements in this Section shall survive the payment of the Loans and all other amounts payable hereunder. Each Lender acknowledges that it has, independently and without reliance upon ~~the Administrative~~ 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 Administrative~~ any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. The ~~Lenders identified in this Agreement as a~~ Co-Syndication ~~Agent~~ Agents and a Co-Documentation ~~Agent~~ Agents shall not have any ~~right, power, obligation, liability, responsibility~~ duties or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, responsibilities hereunder in ~~connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby~~their capacity as such.

Appears in 1 contract

Sources: Credit Agreement (Aol Time Warner Inc)

The Agents. Each of the Lenders ~~and the Issuing Bank~~ hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The~~ Each bank serving as ~~the Administrative~~ 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 ~~the Administrative~~ an Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Borrower~~ any Company or ~~any Subsidiary or other~~ Affiliate thereof as if it were not ~~the Administrative~~ an Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (~~or such other number or percentage of~~ or, if so specified by this Agreement, all the ~~Lenders as shall be necessary under the circumstances as provided in Section 2.05(j) and Section 9.02~~Lenders), and (c) except as expressly set forth ~~in the Loan Documents~~herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings, the Borrower or~~ any ~~of the Subsidiaries~~ Company that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (~~or such other number or percentage of~~ or, if so specified by this Agreement, all the ~~Lenders as shall be necessary under the circumstances as provided in Section 9.02~~Lenders) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~Holdings, the~~ any Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any ~~Loan~~ other Credit Document, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ under any Credit Document or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in ~~any Loan~~ the Credit Document, (iv) the validity, enforceability, effectiveness or genuineness of any ~~Loan~~ Credit Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by a proper Person. An initial list of the proper ~~Person~~Persons with respect to the Borrowers appears on Schedule 8. Schedule 8 shall not be altered except in writing by a Person appearing thereon (or by a successor to such Person occupying the equivalent office). The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying ~~thereon~~thereon so long as such statement, in the case of a Borrowing Request, complies with the requirements of Section 2.03 in all material respects (it being understood that oral notices of borrowing will be confirmed in writing by such Borrower in accordance with Section 2.03). The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by the Administrative Agent. The Administrative Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of ~~each~~ the Administrative Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. ~~The~~ Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the ~~Borrower~~Borrowers. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~Borrower~~Borrowers, to appoint a ~~successor~~successor which, so long as no Event of Default is continuing, shall be reasonably 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 Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Bank~~Lenders, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Borrowers and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Administrative Agent. The Lenders agree to indemnify each Agent in its capacity as such (to the extent not reimbursed by the Borrowers and without limiting the obligation of the Borrowers to do so), ratably according to their Commitments in effect (or at any time after the Commitments have terminated, their Revolving Credit Exposures) on the date on which indemnification is sought under this Article VIII (or, if indemnification is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with their Commitments (or, if the Commitments have terminated earlier, their Revolving Credit Exposures) immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted against such Agent in any way relating to or arising out of, the Commitments, this Agreement, any of the other Credit Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by such Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from such Agent's gross negligence or willful misconduct. The agreements in this Section shall survive the payment of the Loans and all other amounts payable hereunder. Each Lender acknowledges that it has, independently and without reliance upon ~~the Administrative~~ 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 Administrative~~ any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. The ~~Lenders identified in this Agreement as a~~ Co-Syndication ~~Agent~~ Agents and a Co-Documentation ~~Agent~~ Agents shall not have any ~~right, power, obligation, liability, responsibility~~ duties or ~~duty~~ responsibilities under ~~this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor~~ any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, Credit Document in ~~connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby~~their capacity as such.

Appears in 1 contract

Sources: Credit Agreement (Time Warner Inc)

Appears in 1 contract

Sources: Credit Agreement (Time Warner Inc)

The Agents. ~~Each~~ (a) For convenience of administration and to expedite the transactions contemplated by this Agreement, Chase is hereby appointed as Administrative Agent and Documentary Agent for the Lenders under this Agreement. Neither of the ~~Lenders~~ Agents shall have any duties or responsibilities with respect hereto except those expressly set forth herein or in the other Loan Documents. Each Lender and ~~the~~ Issuing Bank and its successors and permitted assigns hereby irrevocably appoints ~~the Administrative Agent as its agent~~ and expressly authorizes the ~~Administrative Agent~~ Agents, without hereby limiting any implied authority, to take such ~~actions~~ action as the Agents may deem appropriate on its behalf and to exercise such powers under this Agreement as are specifically delegated to ~~the Administrative Agent~~ such Person by the terms ~~of the Loan Documents~~hereof, together with such ~~actions and~~ powers as are reasonably incidental thereto. ~~For purposes~~ The Administrative Agent is hereby expressly authorized by the Lenders and Issuing Banks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and Issuing Banks all payments of principal of and interest on the Loans and all other amounts due to the Lenders and Issuing Banks hereunder, and promptly to distribute to each Lender and Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of the Lenders and Issuing Banks to the Borrowers of any Event of Default specified in this ~~Article VIII, all references to~~ Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder or as directed by the Required Lenders; and (c) to distribute to each Lender and Issuing Bank copies of all notices, financial statements and other materials delivered by the Borrowers pursuant to this Agreement as received by the Administrative Agent. (b) Neither of the Agents or any of their respective directors, officers, agents or employees shall be ~~deemed~~ liable as such for any action taken or omitted to be ~~references~~ taken by any of them except for its or his own gross negligence or wilful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ~~both~~ ascertain or to make any inquiry concerning the ~~Administrative~~ performance or observance by the Borrowers or any other party of any of the terms, conditions, covenants or agreements contained in any Loan Document. The Agents shall not be responsible to the Lenders or the Issuing Banks for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. 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 each Lender and its successors or permitted assigns. Each Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Person or Persons. Neither of the Agents nor any of their respective directors, officers, employees or agents shall have any responsibility to the Borrowers or any other party on account of the failure of or delay in performance or breach by any Lender or Issuing Bank of any of its obligations hereunder or to any Lender or Issuing Bank on account of the failure of or delay in performance or breach by any other Lender or Issuing Bank or the Borrowers or any other party of any of their respective obligations hereunder or under any other Loan Document or in connection herewith 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. Each of the Lenders and Issuing Banks hereby acknowledge that none of the Agents shall be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. (c) To the extent that any Agent shall not be reimbursed by the Borrowers for any costs, liabilities or expenses incurred in such capacity, each Lender agrees (i) to reimburse the Agents, on demand (in the amount of its Applicable Percentage hereunder) of any expenses incurred for the benefit of the Lenders by the Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders and (ii) to indemnify and hold harmless each Agent and any of its directors, officers, employees or agents, on demand, in the ~~Collateral~~ amount of such Applicable Percentage, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against 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; provided, however, that no Lender shall be liable to an Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or wilful misconduct of such Agent or of its directors, officers, employees or agents. (d) With respect to the Loans made by it hereunder or the Letters of Credit issued by it hereunder, each Agent~~. The bank serving~~ , in its individual capacity and not as ~~the Administrative Agent hereunder~~ Agent, shall have the same rights and powers ~~in its capacity as a Lender~~ as any other Lender or Issuing Bank, as applicable, and may exercise the same as though it were not ~~the Administrative~~ an Agent, and ~~such bank~~ the Agents and ~~its~~ their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Borrowers or any ~~Subsidiary~~ of their respective Subsidiaries or other Affiliate thereof as if it were not an Agent. (e) Subject to the ~~Administrative~~ appointment and acceptance of a successor Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing 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 2.05(j) and Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclosebelow, any information relating to Holdings, the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more subagents appointed by the Administrative Agent. The Administrative Agent and any such subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such subagent and to the Related Parties of each Administrative Agent and any such subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent may resign at any time by ~~notifying~~ giving written notice thereof to the Lenders, the Issuing ~~Bank~~ Banks and the ~~Borrower~~Borrowers. Upon any such resignation, the Required Lenders shall have the ~~right~~right to appoint, ~~in consultation with~~ and the ~~Borrower~~Borrowers shall have the right to approve (such approval not to be unreasonably withheld or delayed) a successor Administrative Agent or Documentary Agent, ~~to appoint a successor~~as the case may be. If no successor Administrative Agent or Documentary Agent, as the case may be, shall have been so appointed ~~by the Required Lenders~~ and approved and shall have accepted such ~~appointment~~ appointment, within 30 days after the retiring ~~Administrative Agent gives~~ Agent's giving of notice of ~~its~~ resignation, then the retiring ~~Administrative Agent~~ Person may, on behalf of the Lenders and the Issuing ~~Bank~~Banks, appoint a successor Administrative Agent or Documentary Agent, as the case may be, which shall be a ~~bank~~ 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 ~~bank~~Lender. Upon the acceptance of ~~its~~ any appointment as Administrative Agent or Documentary Agent hereunder by a ~~successor~~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 ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall from and after such date be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrower to a successor~~ After any such retiring Agent's resignation hereunder as Administrative Agent ~~shall be the same~~ or Documentary Agent, as ~~those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder~~applicable, the provisions of this Article IX and Section ~~9.03~~ 10.04 shall ~~continue in effect for the~~ inure to its benefit ~~of such retiring Administrative Agent, its subagents and their respective Related Parties in respect of~~ as to any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as 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 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 separate and several and neither of them shall be responsible or liable for 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 and Issuing Bank acknowledges that it has, independently and without reliance upon the ~~Administrative Agent~~ Agents or any other Lender or Issuing Banks and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon the ~~Administrative Agent~~ Agents or any other Lender or Issuing Banks and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any other Loan ~~Document or~~ Document, any related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.

Appears in 1 contract

Sources: Credit Agreement (Fm Properties Inc)

The Agents. Each of the Lenders ~~and the Issuing Bank~~ hereby irrevocably appoints the Administrative Agent and Collateral Agent as its agent and authorizes the Administrative Agent and Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent and Collateral Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The Administrative Agent also shall act as the Collateral Agent under the Loan Documents. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder, and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied ~~duties~~duties to any Lender, regardless of whether a Default or Event of Default has occurred and is continuing, (b) each Lender agrees (i) that the use of the term “agent” herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied or express obligations arising under agency doctrine of any applicable law, and is used solely as a matter of market custom to reflect an exclusively administrative relationship between contracting parties, and (ii) that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby, (c) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing 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 ~~2.05(j) and Section~~ 9.02), and (cd) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more subagents appointed by the Administrative Agent; provided, however, that the Loan Parties shall make all payments under any Loan Document directly to the Administrative Agent. The Administrative Agent and any such subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such subagent and to the Related Parties of each Administrative Agent and any such subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a ~~successor~~successor who shall either be (i) a “U.S. person” and a “financial institution” within the meaning of United States Treasury Regulations Section 1.1441-1 or (ii) a U.S. branch of a non-U.S. financial institution that has agreed to be treated as a “United States person” within the meaning of Section 7701(a)(30) of the Code. 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 and the Issuing Bank~~Lenders, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender (i) represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business, and that it is capable of evaluating and understanding the terms, conditions and risks of becoming a Lender under this Agreement, including in the context of related transactions to be entered into by the Borrower, and multiple roles to be performed by the Administrative Agent, the Arranger and their respective Affiliates, in connection herewith or therewith, and (ii) acknowledges that it has, independently and without reliance upon the Administrative ~~Agent or~~ Agent, the Arranger, any other Lender or any Related Party of any of the foregoing and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement~~. Each Lender also acknowledges that it~~ , and will, independently and without reliance upon the Administrative ~~Agent or~~ Agent, the Arranger, any other Lender or any Related Party of any of the foregoing and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into any and all documents with respect to Collateral and the ~~First~~ rights of the Secured Parties with respect thereto (including the Intercreditor Agreement or any Pari Passu Intercreditor Agreement or Junior Lien Intercreditor Agreement, if applicable) as contemplated by and in accordance with the provisions of this Agreement and the ~~Second Lien Intercreditor agreement,~~ Security Documents without any further consent from any Secured Party, which terms shall be reasonably satisfactory to Administrative Agent. No Person named as an Arranger in ~~connection with~~ this Agreement shall have any ~~incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby~~liability under this Agreement or any other Loan Document in its capacity as such.

Appears in 1 contract

Sources: Second Lien Credit Agreement (Select Medical Corp)

The Agents. 9.1 Appointment (a) Each ~~of the Lenders and the Issuing Bank~~ Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as ~~its~~ the administrative agent under the Loan Documents and each Lender and each Issuing Lender authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent ~~by the terms of the Loan Documents, together with~~ under such ~~actions~~ agreements and to exercise such powers as are reasonably incidental thereto. ~~For purposes of this Article VIII~~Without limiting the foregoing, ~~all references to~~ each Lender hereby authorizes the Administrative Agent ~~shall be deemed~~ to ~~be references~~ execute and deliver, and to ~~both~~ perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, and ~~the Collateral Agent. The bank serving as~~ to exercise all rights, powers and remedies that the Administrative Agent ~~hereunder shall~~ may have ~~the same rights~~ under such Loan Documents. (b) As to any matters not expressly provided for herein and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the other Loan ~~Documents. Without limiting the generality of the foregoing~~Documents (including enforcement or collection), ~~(a)~~ the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in ~~writing as directed by~~ so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary under~~ necessary, pursuant to the ~~circumstances as provided~~ terms in ~~Section 2.05(j) and Section 9.02~~the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (ci) ~~except~~ the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives an indemnification and is exculpated in a manner satisfactory to it from the Lenders and the Issuing Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders (or, for matters that require consent of a greater or different number or percentage pursuant to Section 10.1, such other number or percentage of Lenders) prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings~~the Borrower, ~~the Borrower~~ any Subsidiary or any Affiliate of any of the ~~Subsidiaries~~ foregoing that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. ~~The~~ Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders and the Issuing Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent does not assume and shall not be ~~liable~~ deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any ~~action taken~~ Lender, other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or ~~not taken by~~ an Event of Default has occurred and is continuing (and it ~~with~~ is understood and agreed that the ~~consent or at the request~~ use of the ~~Required Lenders~~ term “agent” (or ~~such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02~~any similar term) herein or in ~~the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of~~ any ~~Default unless and until written notice thereof is given~~ other Loan Document with reference to the Administrative Agent ~~by Holdings, the Borrower~~ is not intended to connote any fiduciary duty or ~~a Lender~~other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent ~~shall not be responsible for or have any~~ based on an alleged breach of fiduciary duty ~~to ascertain or inquire into (i) any statement, warranty or representation made in or~~ by the Administrative Agent in connection with ~~any Loan Document,~~ this Agreement and/or the transactions contemplated hereby. (iid) ~~the contents of any certificate, report~~ Nothing in this Agreement or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document shall require the Administrative Agent to account to any Lender for any sum or ~~any other agreement, instrument or document, or (v)~~ the ~~satisfaction~~ profit element 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~~ sum received by the Administrative ~~Agent. The Administrative~~ Agent ~~shall be entitled to rely upon, and shall not incur any liability~~ for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel its own account. (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. e) The Administrative Agent may perform any ~~and all~~ of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more ~~subagents~~ sub-agents appointed by the Administrative Agent. The Administrative Agent and any such ~~subagent~~ sub-agent may perform any ~~and all its~~ of their respective duties and exercise ~~its~~ their respective rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs~~ this Article shall apply to any such ~~subagent~~ sub-agent and to the Related Parties of ~~each~~ the Administrative Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities ~~in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent~~pursuant to this Agreement. The Administrative Agent ~~may resign at~~ shall not be responsible for the negligence or misconduct of any ~~time by notifying~~ sub-agent except to the ~~Lenders~~extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (f) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, ~~the Issuing Bank and the Borrower. Upon any~~ but all such ~~resignation, the Required Lenders~~ persons shall have the ~~right~~benefit of the indemnities provided for hereunder. (g) 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 ~~consultation with~~ effect, the Administrative Agent (irrespective of whether the principal of any Loan or any Reimbursement Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower, ) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: to ~~appoint~~ file and prove a ~~successor. If no successor shall~~ claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have ~~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~~ claims of the Lenders and the ~~Issuing Bank, appoint a successor~~ Administrative Agent ~~which shall be a bank with an office~~ (including any claim under Sections 2.12, 2.13, 2.15, 2.17 and 9.3) allowed in ~~New York, New York,~~ such judicial proceeding; and to collect and receive any monies or ~~an Affiliate of~~ other property payable or deliverable on any such ~~bank. Upon~~ claims and to distribute the ~~acceptance of its appointment as~~ same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender and each other Secured Party to make such payments to the Administrative Agent ~~hereunder by a successor~~and, in the event that the Administrative Agent shall consent to the making of such ~~successor shall succeed~~ payments directly to ~~and become vested with all~~ the ~~rights~~Lenders or the other Secured Parties, ~~powers~~to pay to the Administrative Agent any amount due to it, ~~privileges and duties of~~ in its capacity as the ~~retiring~~ Administrative Agent, ~~and~~ under the ~~retiring~~ Loan Documents (including under Section 9.3). Nothing contained herein shall be deemed to authorize the Administrative Agent ~~shall be discharged from its duties and obligations hereunder. The fees payable by~~ to authorize or consent to or accept or adopt on behalf of any Lender or Issuing Lender any plan of reorganization, arrangement, adjustment or composition affecting the ~~Borrower~~ Obligations or the rights of any Lender or Issuing Lender or to ~~a successor~~ authorize the Administrative Agent ~~shall be~~ to vote in respect of the ~~same as those payable to its predecessor unless otherwise agreed between~~ claim of any Lender or Issuing Lender in any such proceeding. (h) The provisions of this Article are solely for the ~~Borrower and such successor. After~~ benefit of the Administrative Agent, the Lenders and the Issuing Lenders, and, except solely to the extent of the Borrower’s ~~resignation hereunder~~rights to consent pursuant to and subject to the conditions set forth in this Article, none of the Borrower or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties therebyArticle.

Appears in 1 contract

Sources: Abl Credit Agreement (Clearwater Paper Corp)

The Agents. In order to expedite the transactions contemplated by this Agreement, Chase is hereby appointed to act as Administrative Agent and CMIL is hereby appointed to act as London Agent, on behalf of the Lenders. Each of the Lenders and ~~the Issuing Bank~~ each assignee of any such Lender hereby irrevocably ~~appoints the Administrative Agent as its agent and~~ authorizes the ~~Administrative Agent~~ Agents to take such actions on ~~its~~ behalf of such Lender or assignee and to exercise such powers as are delegated to the ~~Administrative Agent~~ Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes of this Article VIII, all references~~ With respect to the ~~Administrative~~ Loans made by it hereunder, each Agent ~~shall be deemed to be references to both the Administrative~~ in its individual capacity and not as Agent ~~and the Collateral Agent. The bank serving as the Administrative Agent hereunder~~ shall have the same rights and powers ~~in its capacity as a Lender~~ as any other Lender and may exercise the same as though it were not ~~the Administrative~~ an Agent, and ~~such bank~~ the Agents and ~~its~~ their Affiliates in their respective individual capacities may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if it were not ~~the Administrative Agent hereunder~~an Agent. The ~~Administrative Agent~~ 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) ~~the Administrative~~ no Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative~~ no Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that ~~the Administrative~~ such Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~2.05(j) and Section 9.02~~10.02), and (c) except as expressly set forth in the Loan Documents, ~~the Administrative~~ no Agent shall ~~not~~ have any duty to disclose, and no Agent shall ~~not~~ be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower~~ Company or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the ~~bank~~ institution serving as ~~Administrative~~ Agent or any of its Affiliates in any capacity. ~~The Administrative~~ No Agent shall ~~not~~ be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~10.02) or in the absence of its own ~~gross negligence~~ culpable negligence, bad faith or ~~willful~~ wilful misconduct. ~~The Administrative~~ No Agent shall be deemed ~~not~~ to have knowledge of any Default other than a Default of the types specified in clause (a) and (b) of Article VII unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~Holdings, the~~ a Borrower or a Lender, and the ~~Administrative~~ Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any~~ the Loan ~~Document~~Documents, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any~~ the Loan ~~Document~~ Documents or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to ~~the Administrative~~ such Agent. ~~The Administrative~~ 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 in good faith to be genuine and to have been signed or sent by the proper Person. ~~The Administrative~~ Each Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. ~~The Administrative~~ Each Agent may consult with legal counsel (who may be counsel for ~~the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The Administrative~~ Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by ~~the Administrative~~ such Agent. ~~The Administrative~~ Each Agent and any such ~~subagent~~ 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 ~~subagent~~ sub- agent and to the Related Parties of ~~each Administrative~~ such Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as ~~Administrative~~ Agent. ~~The Administrative~~ 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 Bank~~ Lenders and the ~~Borrower~~Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~Borrower~~Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent may, on behalf of the ~~Lenders and the Issuing Bank~~Lenders, appoint a successor ~~Administrative~~ Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Company to a successor ~~Administrative~~ Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Company and such successor. After the ~~Administrative~~ Agent’s 's resignation hereunder, the provisions of this Article and Section ~~9.03~~ 10.03 shall continue in effect for the benefit of such retiring ~~Administrative~~ Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as ~~Administrative~~ Agent. Each Lender acknowledges that it has, independently and without reliance upon the ~~Administrative Agent~~ 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 ~~Administrative Agent~~ 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 or any other Loan Document or any related agreement or any document furnished hereunder or thereunder. ~~The Lenders identified in this Agreement as a~~ None of the Syndication Agent ~~and a~~ or the Co-Documentation ~~Agent~~ Agents, in their capacities as such, shall ~~not~~ have any ~~right, power, obligation, liability, responsibility~~ duties or ~~duty~~ obligations of any kind under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties therebyAgreement.

Appears in 1 contract

Sources: Credit Agreement (TRW Inc)

Appears in 1 contract

Sources: Second Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)

The Agents. Each of the Lenders and the Issuing ~~Bank~~ Lenders hereby irrevocably appoints ~~the Administrative~~ each Agent as its agent hereunder and under the other Loan Documents and authorizes ~~the Administrative~~ each Agent to take such actions on its behalf and to exercise such powers as are delegated to ~~the Administrative~~ such Agent by the terms ~~of the Loan Documents~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. ~~For purposes~~ Each of ~~this Article VIII, all references to~~ the ~~Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The bank~~ Person serving as the Administrative Agent hereunder and the Person serving as 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 the Administrative Agent or the Collateral Agent, as the case may be, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent or the Collateral Agent, as the case may be, hereunder. ~~The Administrative~~ Neither Agent shall ~~not~~ have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) ~~the Administrative~~ neither Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative~~ neither Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that ~~the Administrative~~ such Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or, to the extent required by this Agreement or any other Loan Document, all of the Lenders or such other specified percentage or number ~~or percentage~~ of ~~the Lenders as shall be necessary under the circumstances as provided in Section 2.05(j) and Section 9.02~~Lenders), and (c) except as expressly set forth herein and in the other Loan Documents, ~~the Administrative~~ neither Agent shall ~~not~~ have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or as Collateral Agent or any of its Affiliates in any capacity. ~~The Administrative~~ Neither Agent shall ~~not~~ be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or, to the extent required by this Agreement or any other Loan Document, all of the Lenders or such other specified percentage or number ~~or percentage~~ of ~~the Lenders as shall be necessary under the circumstances as provided in Section 9.02~~Lenders) or in the absence of its own gross negligence or willful misconduct. ~~The Administrative~~ Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~Holdings,~~ the Borrower or a Lender, and ~~the Administrative~~ neither Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document this Agreement or any other ~~agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any~~ Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more subagents appointed by the Administrative Agent. The Administrative Agent and any such subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such subagent and to the Related Parties of each Administrative Agent and any such subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.,

Appears in 1 contract

Sources: Credit Agreement (Pacificare Health Systems Inc /De/)

The Agents. Each of the Lenders ~~and the Issuing Bank~~ hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing 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 2.05(j) and~~ Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more subagents appointed by the Administrative Agent; provided, however, that the Loan Parties shall make all payments under any Loan Document directly to the Administrative Agent. The Administrative Agent and any such subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such subagent and to the Related Parties of each Administrative Agent and any such subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a ~~successor~~successor who shall either be (i) a “U.S. person” and a “financial institution” within the meaning of United States Treasury Regulations Section 1.1441-1 or (ii) a U.S. branch of a non-U.S. financial institution that has agreed to be treated as a “United States person” within the meaning of Section 7701(a)(30) of the Code. 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 and the Issuing Bank~~Lenders, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into any and all documents with respect to Collateral and the ~~First~~ rights of the Secured Parties with respect thereto (including the Intercreditor Agreement or any Pari Passu Intercreditor Agreement or Junior Lien Intercreditor Agreement, if applicable) as contemplated by and in accordance with the provisions of this Agreement and the ~~Second Lien Intercreditor agreement,~~ Security Documents without any further consent from any Secured Party, which terms shall be reasonably satisfactory to Administrative Agent. No Person named as an Arranger or bookrunner in ~~connection with~~ this Agreement shall have any ~~incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby~~liability under this Agreement or any other Loan Document in its capacity as such.

Appears in 1 contract

Sources: Second Lien Credit Agreement (Select Medical Corp)

The Agents. Each of the Lenders and the Issuing ~~Bank~~ Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as ~~its~~ administrative agent under the Loan Documents, and authorizes the Administrative Agent to take such actions ~~on its behalf~~ and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes of~~ Except as expressly set forth under this Article VIII, ~~all references to~~ no Borrower nor any Subsidiary shall have rights as third party beneficiary of any such provisions. Each of the ~~Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The bank serving as the Administrative Agent~~ Agents hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not ~~the Administrative~~ an Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~the~~ any Borrower or any Subsidiary or other Affiliate thereof as if it such Person were not an Agent hereunder and without any duty to account therefor to the ~~Administrative Agent hereunder~~Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary ~~powers~~power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in ~~Section 2.05(j) and Section 9.02~~the Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings~~the Borrowers, ~~the Borrower~~ any Subsidiary or any Affiliate of any of the ~~Subsidiaries~~ foregoing that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in ~~Section 9.02~~the Loan Documents) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct, as determined by a court of competent jurisdiction by a final and non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~Holdings~~FCX, ~~the Borrower~~ a Lender or ~~a Lender~~an Issuing Bank, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan ~~Document~~Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or ~~document,~~ document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from (A) any confirmation of the Revolving Exposure or the component amounts thereof, (B) any confirmation of the aggregate Revolving Exposure attributable to Loans made to PTFI and Letters of Credit issued at the request of PTFI or of the component amounts thereof or (C) any determination as to whether a Letter of Credit constitutes a Financial Letter of Credit or a Performance Letter of Credit. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ signed, sent or ~~sent~~ otherwise authenticated by the proper ~~Person~~Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof). The Administrative Agent also ~~may rely~~ shall be entitled to rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~Person~~Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof), and ~~shall not incur~~ may act upon any ~~liability for relying thereon~~such statement prior to receipt of written confirmation thereof. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more ~~subagents~~ sub-agents appointed by the Administrative Agent. The Administrative Agent and any such ~~subagent~~ sub-agent may perform any of and all ~~its~~ their duties and exercise ~~its~~ their rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs~~ this Article shall apply to any such ~~subagent~~ sub-agent and to the Related Parties of ~~each~~ the Administrative Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. ~~The~~ Subject to the terms of this paragraph, the Administrative Agent may resign at any time ~~by notifying~~ from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing ~~Bank~~ Banks and the ~~Borrower~~Borrowers. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the ~~Borrower~~Borrowers, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its ~~resignation~~intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing ~~Bank~~Banks, appoint a successor Administrative ~~Agent~~ Agent, 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents. The fees payable by the ~~Borrower~~ Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~between~~ by the ~~Borrower~~ Borrowers and such successor. ~~After~~ Notwithstanding the foregoing, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Borrowers, whereupon, on the date of effectiveness of such resignation stated in such notice, (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, and (b) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, provided that (i) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (ii) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall also directly be given or made to each Lender and each Issuing Bank. Following the effectiveness of the Administrative Agent’s resignation ~~hereunder~~from its capacity as such, the provisions of this Article and Section ~~9.03~~ 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring Administrative Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative ~~Agent~~Agent and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon either Agent, any person listed on the ~~Administrative Agent~~ cover page of this Agreement as an arranger, or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon either Agent, any person listed on the ~~Administrative Agent~~ cover page of this Agreement as an arranger, or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. ~~The Lenders identified in~~ Each Lender, by delivering its signature page to this Agreement as on or prior to the Closing Date, or delivering its signature page to an Assignment and Assumption or an Incremental Facility Agreement pursuant to which it shall become a ~~Syndication~~ 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 ~~and a Documentation Agent~~ or the Lenders on the Closing Date. No Credit Party shall ~~not~~ have any ~~right~~right individually to enforce any Guarantee of the Obligations, ~~power~~it being understood and agreed that all powers, ~~obligation~~rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Credit Parties in accordance with the terms thereof. Each Credit Party, ~~liability~~whether or not a party hereto, ~~responsibility or duty~~ will be deemed, by its acceptance of the benefits of the Guarantees of the Obligations provided under ~~this Agreement other than those applicable~~ the Loan Documents, to ~~all Lenders~~have agreed to the foregoing provisions. ~~Without limiting~~ Notwithstanding anything herein to the ~~foregoing~~contrary, no neither the Syndication Agent nor any ~~Documentation Agent~~ Person named on the cover page of this Agreement as an arranger or a documentation agent shall have any duties or ~~be deemed to~~ obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as a Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder. The provisions of this Article are solely for the benefit of the Agents, the Lenders and the Issuing Banks, and none of the Borrowers nor any other Loan Party shall have any rights as a ~~fiduciary relationship with~~ third party beneficiary of any ~~Lender~~such provisions. Each Lender ~~irrevocably agrees that~~ represents and warrants, as of the date such Person became a Lender party hereto, to, and covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of the Administrative Agent ~~may enter into the First Lien Intercreditor Agreement~~ and the ~~Second Lien Intercreditor agreement~~institutions named as Joint Lead Arrangers, ~~without~~ Joint Bookrunners, Syndication Agent and Documentation Agents listed on the cover page hereof and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any ~~further consent from any Secured Party~~of its Subsidiaries, that at least one of the following is and will be true: (i) such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Plans in connection with ~~any incurrence~~ the Loans, the Letters of Credit and the Commitments, (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit and the Commitments and this Agreement, (iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit and the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit and the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit and the Commitments and this Credit Agreement, or (iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender. In addition, unless clause (i) of the immediately preceding paragraph is true with respect to such Lender or such Lender has not provided another representation, warranty and covenant as provided in clause (iv) of the immediately preceding paragraph, such Lender further represents and warrants, as of the date such Person became a Lender party hereto, to, and covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the institutions named as Bookrunners, Syndication Agent, Documentation Agents or Lead Arrangers on the cover page hereof and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any of ~~Permitted Debt Securities~~ its Subsidiaries, that: (i) none of the Administrative Agent or any of the institutions named as Joint Lead Arrangers, Joint Bookrunners, Syndication Agent and ~~bind~~ Documentation Agents on the ~~Secured Parties thereby.~~cover page hereof or their respective Affiliates is a fiduciary with respect to t

Appears in 1 contract

Sources: Revolving Credit Agreement (Freeport-McMoran Inc)

The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably ~~appoints~~ appoint the U.S. Administrative Agent ~~as its agent~~ and ~~authorizes the~~ Canadian Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to ~~the Administrative~~ each such Agent by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent.~~ The bank serving as the U.S. Administrative Agent and the bank serving as the Canadian Administrative Agent hereunder shall each have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not ~~the Administrative~~ an Agent, and each such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if it were not ~~the Administrative~~ an Agent hereunder. The ~~Administrative Agent~~ Agents shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, (a) ~~the Administrative~~ neither Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative~~ neither Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that ~~the Administrative~~ such Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~2.05(j~~10.02) ~~and Section 9.02),~~ and (c) except as expressly set forth ~~in the Loan Documents~~herein, ~~the Administrative~~ neither Agent shall ~~not~~ have any duty to disclose, and neither Agent shall ~~not~~ be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower~~ Company or any ~~of the Subsidiaries~~ Subsidiary that is communicated to or obtained by ~~the~~ such bank serving as ~~Administrative~~ an Agent or any of its Affiliates in any capacity. ~~The Administrative~~ Neither Agent shall ~~not~~ be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~10.02) or in the absence of its own gross negligence or willful misconduct. ~~The Administrative~~ Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~Holdings, the~~ a Borrower or a Lender, and ~~the Administrative~~ neither Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document~~this Agreement, (ii) the contents of any certificate, report or other document delivered ~~thereunder or~~ hereunder in connection ~~therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to ~~the Administrative~~ such Agent. ~~The Administrative~~ 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. ~~The Administrative~~ 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. ~~The Administrative~~ Each Agent may consult with legal counsel (who may be counsel for ~~the~~ either Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The Administrative~~ Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by ~~the Administrative~~ such Agent. ~~The Administrative~~ Each Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of each ~~Administrative~~ Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as ~~Administrative~~ Agent. ~~The Administrative~~ Subject to the appointment and acceptance of a successor as provided in this paragraph, either Agent may resign at any time by notifying the Lenders, the Issuing Bank and the ~~Borrower~~Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~Borrower~~Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor ~~Administrative~~ Agent which shall be a bank with an office in New York, New York, if such successor bank is the U.S. Administrative Agent, or Toronto, if such successor bank is the Canadian Administrative Agent, or an Affiliate of any such bank. Upon the acceptance of its appointment as ~~Administrative~~ Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Company to a successor ~~Administrative~~ Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Company and such successor. After ~~the Administrative~~ an Agent’s 's resignation hereunder, the provisions of this Article IX and Section ~~9.03~~ 10.03 shall continue in effect for the benefit of such retiring ~~Administrative~~ Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as ~~Administrative~~ such Agent. Each Lender acknowledges that it has, independently and without reliance upon ~~the Administrative~~ 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 Administrative~~ 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, any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.

Appears in 1 contract

Sources: Credit Agreement (Sysco Corp)

The Agents. In order to expedite the transactions contemplated by this Agreement, the Persons named in the heading of this Agreement are hereby appointed to act as Administrative Agent, London Agent and Canadian Agent on behalf of the Lenders. Each of the Lenders and ~~the Issuing Bank~~ each assignee of any Lender hereby irrevocably ~~appoints the Administrative Agent as its agent and~~ authorizes the ~~Administrative Agent~~ Agents to take such actions on ~~its~~ behalf of such Lender or assignee and to exercise such powers as are delegated to the ~~Administrative Agent~~ Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes~~ The Administrative Agent and, to the extent expressly provided herein, the other Agents are hereby expressly authorized by the Lenders, without hereby limiting any implied authority, and by the Borrowers with respect to clause (c) below, (a) to receive on behalf of the Lenders all payments of principal of and interest on the Loans and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this ~~Article VIII, all references to~~ Agreement of which the Administrative Agent ~~shall be deemed~~ has actual knowledge acquired in connection with its agency hereunder; and (c) to ~~be references~~ distribute to ~~both~~ 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 and the Collateral~~ Agent. ~~The bank serving~~ With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as ~~the Administrative~~ Agent ~~hereunder~~ shall have the same rights and powers ~~in its capacity as a Lender~~ as any other Lender and may exercise the same as though it were not ~~the Administrative~~ an Agent, and ~~such bank~~ the Agents and ~~its~~ their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any of the ~~Borrower~~ Borrowers or any ~~Subsidiary~~ of their Subsidiaries or other ~~Affiliate~~ Affiliates thereof as if it were not ~~the Administrative Agent hereunder~~an Agent. The ~~Administrative Agent~~ 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) ~~the Administrative~~ no Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative~~ no Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that ~~the Administrative~~ such Agent is required to exercise upon receipt of notice 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 ~~2.05(j) and Section 9.02~~10.02), and (c) except as expressly set forth in the Loan Documents, ~~the Administrative~~ no Agent shall ~~not~~ have any duty to disclose, and no Agent shall ~~not~~ be liable for the failure to disclose, any information relating to ~~Holdings,~~ any of the ~~Borrower~~ Borrowers or any of ~~the~~ their Subsidiaries that is communicated to or obtained by the ~~bank~~ institution serving as ~~Administrative~~ Agent or any of its Affiliates in any capacity. ~~The Administrative~~ No Agent shall ~~not~~ be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~10.02) or in the absence of its own gross negligence or willful misconduct. ~~The Administrative~~ No Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~Holdings, the~~ a Borrower ~~or a~~ (in which case such Agent shall give written notice to each other Lender), and ~~the Administrative~~ no Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to ~~the Administrative~~ such Agent. ~~The Administrative~~ 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. ~~The Administrative~~ 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. ~~The Administrative~~ Each Agent may consult with legal counsel (who may be counsel for ~~the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The Administrative~~ Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by ~~the Administrative~~ such Agent. ~~The Administrative~~ Each Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of each ~~Administrative~~ Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as ~~Administrative~~ Agent. ~~The Administrative~~ 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 Bank~~ Lenders and the ~~Borrower~~Company. Upon any such resignation, the Required Lenders shall have the right, ~~in consultation~~ with the ~~Borrower~~consent of the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent may, on behalf of the ~~Lenders and the Issuing Bank~~Lenders, appoint a successor ~~Administrative~~ Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and 66 the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.~~ After the ~~Administrative~~ Agent’s 's resignation hereunder, the provisions of this Article and Section ~~9.03~~ 10.03 shall continue in effect for the benefit of such retiring ~~Administrative~~ Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as ~~Administrative~~ Agent. Each Lender agrees (a) to reimburse the Agents, on demand, in the amount of its pro rata share (based on the amount of its Loans and available Commitments hereunder) of any expenses incurred for the benefit of the Lenders by the Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Company or any other Borrower and (b) to indemnify and hold harmless each Agent and any of its Related 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 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 Company or any other Borrower; PROVIDED that no Lender shall be liable to an Agent or any such other indemnified Person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are determined to have resulted from the gross negligence or willful misconduct of such Agent, and any of its Related Parties or any of their respective directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the ~~Administrative Agent~~ 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 ~~Administrative Agent~~ Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. ~~The~~ None of the Lenders identified in on the facing page or signature pages of this Agreement or elsewhere herein as a ~~Syndication Agent and a Documentation Agent~~ "co-syndication agent" shall ~~not~~ have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties therebyLenders as such.

Appears in 1 contract

Sources: Credit Agreement (Automatic Data Processing Inc)

The Agents. In order to expedite the transactions contemplated by this Agreement, the Persons named in the heading of this Agreement are hereby appointed to act as Administrative Agent and Canadian Administrative Agent on behalf of the Lenders. Each of the Lenders and ~~the Issuing Bank~~ each assignee of any Lender hereby irrevocably ~~appoints the Administrative Agent as its agent and~~ authorizes the ~~Administrative Agent~~ Agents to take such actions on ~~its~~ behalf of such Lender or assignee and to exercise such powers as are delegated to the ~~Administrative Agent~~ Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes~~ The Administrative Agent and, to the extent expressly provided herein, the Canadian Administrative Agent are hereby expressly authorized by the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders all payments of principal of and interest on the Loans and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this ~~Article VIII, all references to~~ Agreement of which the Administrative Agent ~~shall be deemed~~ has actual knowledge acquired in connection with its agency hereunder; and (c) to ~~be references~~ distribute to ~~both~~ 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 ~~the Collateral Agent. The bank serving~~ not as ~~the Administrative~~ Agent ~~hereunder~~ shall have the same rights and powers ~~in its capacity as a Lender~~ as any other Lender and may exercise the same as though it were not ~~the Administrative~~ an Agent, and ~~such bank~~ the Agents and ~~its~~ their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if it were not ~~the Administrative Agent hereunder~~an Agent. The ~~Administrative Agent~~ 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) ~~the Administrative~~ no Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative~~ no Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that ~~the Administrative~~ such Agent is required to exercise upon receipt of notice 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 ~~2.05(j~~10.02) ~~and Section 9.02),~~ and (c) except as expressly set forth in the Loan Documents, ~~the Administrative~~ no Agent shall ~~not~~ have any duty to disclose, and no Agent shall ~~not~~ be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower~~ Company or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the ~~bank~~ institution serving as ~~Administrative~~ Agent or any of its Affiliates in any capacity. ~~The Administrative~~ No Agent shall ~~not~~ be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~10.02) or in the absence of its own gross ~~negligence~~ negligence, bad faith or willful misconduct. ~~The Administrative~~ No Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~Holdings, the Borrower or~~ a ~~Lender~~Borrower, and ~~the Administrative~~ no Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to ~~the Administrative~~ such Agent. ~~The Administrative~~ 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. ~~The Administrative~~ 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. ~~The Administrative~~ Each Agent may consult with legal counsel (who may be counsel for ~~the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The Administrative~~ Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by ~~the Administrative~~ such Agent. ~~The Administrative~~ Each Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of each ~~Administrative~~ Agent and any such ~~subagent~~sub-agent, 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 express provision hereof) to, communicate such proposed action or determination to the Lenders prior to 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. ~~The Administrative~~ 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 Bank~~ Lenders and the ~~Borrower~~Company. Upon any such resignation, the Company shall have the right, with the consent of the Required Lenders (not to be unreasonably withheld or 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 ~~Borrower~~Company, to appoint a 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 ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent may, on behalf of the ~~Lenders and the Issuing Bank~~Lenders, appoint a successor ~~Administrative~~ Agent which shall be a bank with an office in New York, New ~~York~~York or Toronto, as applicable, or an Affiliate of any such bank. Upon the acceptance of its appointment as ~~Administrative~~ Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.~~ After the ~~Administrative~~ Agent’s 's resignation hereunder, the provisions of this Article and Section ~~9.03~~ 10.03 shall continue in effect for the benefit of such retiring ~~Administrative~~ Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as ~~Administrative~~ Agent. Each Lender acknowledges that it has, independently and without reliance upon the ~~Administrative Agent~~ 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 ~~Administrative Agent~~ Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.

Appears in 1 contract

Sources: Credit Agreement (Molson Coors Brewing Co)

The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Paying Agent on behalf of the Lenders, and JPMCB and Bank of America, N.A. are hereby appointed to act as Administrative Agents on behalf of the Lenders. Each of the Lenders ~~and the Issuing Bank~~ hereby ~~irrevocably appoints the Administrative Agent as its agent and~~ authorizes ~~the Administrative~~ each Agent to take such actions on ~~its~~ behalf of such Lender and to exercise such powers as are specifically delegated to ~~the Administrative~~ such Agent by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. ~~For purposes~~ The Paying Agent is hereby expressly authorized by the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of ~~this Article VIII,~~ the Lenders all ~~references~~ payments of principal of and interest on the Loans and all other amounts due to the ~~Administrative~~ Lenders hereunder, and promptly to distribute to each Lender its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Borrower of any Event of Default specified in this Agreement of which the Paying Agent ~~shall be deemed~~ has actual knowledge acquired in connection with its agency hereunder; and (c) to ~~be references~~ distribute to ~~both~~ each Lender copies of all notices, financial statements and other materials delivered by the ~~Administrative Agent and~~ Borrower pursuant to this Agreement as received by the ~~Collateral~~ Paying Agent. ~~The bank serving as~~ It is understood that the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent Agents shall not have any duties or obligations except those expressly set forth herein. Neither any Agent nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. No Agent shall be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. 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, in the ~~Loan Documents. Without limiting the generality~~ case of the ~~foregoing~~Paying Agent, ~~(a)~~ the ~~Administrative~~ Paying Agent shall ~~not be subject to~~ have received notice from such Lender or, in the case of any ~~fiduciary or~~ other ~~implied duties~~Agent, ~~regardless of whether a Default has occurred and is continuing, (b) the Administrative~~ such Agent shall ~~not~~ have ~~any duty to take any discretionary action~~ 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. Each Agent shall in all cases be fully protected in acting, or ~~exercise any discretionary powers~~refraining from acting, ~~except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise~~ in ~~writing as directed~~ 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 ~~other number~~ instructions and any action or ~~percentage of the Lenders as~~ inaction pursuant thereto shall be ~~necessary under~~ binding on all the ~~circumstances as provided in Section 2.05(j) and Section 9.02)~~Lenders. Each Agent shall, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of ~~its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have~~ knowledge ~~of any Default unless and until written notice thereof is given~~ to the ~~Administrative Agent by Holdings~~contrary, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely ~~upon, and shall not incur~~ on any ~~liability for relying upon, any notice, request, certificate, consent, statement, instrument,~~ instrument or document ~~or other writing~~ believed by it in good faith to be genuine and correct and to have been signed or sent by the proper ~~Person~~person or persons. ~~The Administrative~~ Neither any Agent ~~also~~ nor any of its directors, officers, employees or agents shall have any responsibility to the Borrower on account of the failure of or delay in performance or breach by any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or the Borrower of any of their respective obligations hereunder or in connection herewith. Each 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 ~~any statement made to it orally or by telephone and believed~~ the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or ~~not taken~~ suffered in good faith by it in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more subagents appointed by the Administrative Agent. The Administrative Agent and any such subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such subagent and to the Related Parties of Lenders hereby acknowledge that each Administrative Agent and any such subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be ~~discharged from its duties and obligations hereunder. The fees payable~~ under no duty to take any discretionary action permitted to be taken by ~~the Borrower~~ it pursuant to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as Agreement unless it shall ~~from time~~ be requested in writing to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence do so by the ~~Borrower of Permitted Debt Securities and bind the Secured Parties thereby~~Required Lenders.

Appears in 1 contract

Sources: 364 Day Competitive Advance and Revolving Credit Facility Agreement (At&t Wireless Services Inc)

Appears in 1 contract

Sources: Revolving Credit Agreement (Readers Digest Association Inc)

Appears in 1 contract

Sources: Credit Agreement (Aol Time Warner Inc)

Appears in 1 contract

Sources: Credit Agreement (Service Corporation International)

Appears in 1 contract

Sources: Second Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)

The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing 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 2.05(j) and Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more subagents appointed by the Administrative Agent. The Administrative Agent and any such subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such subagent and to the Related Parties of each Administrative Agent and any such subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a the Syndication Agent and a the Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no neither the Syndication Agent nor ~~any~~ the Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.

Appears in 1 contract

Sources: Credit Agreement (Select Specialty Hospital Topeka Inc)

The Agents. In order to expedite the transactions contemplated by this Agreement, Chemical Bank is hereby appointed to act as Administrative Agent and Collateral Agent on behalf of the Lenders 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 ~~the Issuing Bank~~ each assignee of any such Lender, hereby irrevocably ~~appoints the Administrative Agent as its agent and~~ authorizes the ~~Administrative Agent~~ Agents to take such actions on ~~its~~ behalf of such Lender or assignee or the Fronting Bank and to exercise such powers as are specifically delegated to the ~~Administrative Agent~~ Agents by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes~~ The Administrative Agent is hereby expressly authorized by the Lenders and the Fronting Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the 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 Thai Offered Rate Loans except pursuant to clauses (C) or (D) above), and promptly to distribute to each Lender or the Fronting Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to IMS and the Borrowers of any Event of Default specified in this ~~Article VIII~~Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder, ~~all references to~~ provided that the Administrative Agent shall not be deemed to ~~be references to both~~ have knowledge or notice of the occurrence of any Event of Default unless the Administrative Agent ~~and the Collateral Agent. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as~~ has received notice from a Lender as 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 ~~Lender and may exercise~~ Loan Party pursuant to this Agreement or the ~~same~~ other Loan Documents as ~~though it were not~~ received by the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, the Agents are hereby expressly authorized to execute any and all documents (aincluding releases) with respect to the ~~Administrative Agent shall not be subject to any fiduciary or other implied duties~~Collateral and the rights of the Secured Parties with respect thereto, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly as contemplated by and in accordance with the ~~Loan Documents that~~ provisions of this Agreement and the ~~Administrative Agent is required to exercise in writing as directed by~~ Security Documents. Neither the ~~Required Lenders (~~Agents nor any of their respective directors, officers, employees or ~~such other number or percentage of the Lenders as~~ agents shall be ~~necessary under the circumstances~~ liable as provided in Section 2.05(j) and Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable such for any action taken or ~~not taken~~ omitted by ~~it with the consent~~ any of them except for its or ~~at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its~~ his own gross negligence or ~~willful~~ wilful misconduct~~. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings~~, ~~the Borrower~~ or ~~a Lender, and the Administrative Agent shall not~~ be responsible ~~for~~ for, or ~~have any duty~~ be required to ascertain or ~~inquire into (i)~~ to make any inquiry concerning the accuracy or completeness of, any statement, warranty or representation ~~made in~~ herein or ~~in connection with any Loan Document, (ii)~~ the contents of any ~~certificate, report or other~~ document delivered ~~thereunder or~~ in connection ~~therewith~~herewith, ~~(iii)~~ or be required to ascertain or to make any inquiry concerning the performance or observance by IMS or any Subsidiary of any of the ~~covenants~~terms, conditions, covenants or agreements ~~or other terms or conditions set forth~~ contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, ~~(iv) the~~ genuineness, validity, ~~enforceability,~~ enforceability or effectiveness ~~or genuineness~~ of ~~any Loan Document~~ this Agreement or any other ~~agreement~~Loan 77 Documents, ~~instrument~~ instruments or ~~document~~agreements. The Agents shall in all cases be fully protected in acting, or ~~(v)~~ refraining from acting, in accordance with written instructions signed by the ~~satisfaction~~ Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the absence 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~~ knowledge to the ~~Administrative Agent. The Administrative Agent shall~~ contrary, be entitled to rely ~~upon, and shall not incur~~ on any ~~liability for relying upon, any notice, request, certificate, consent, statement, instrument,~~ instrument or document ~~or other writing~~ believed by it in good faith to be genuine and correct and to have been signed or sent by the proper ~~Person~~person or persons. ~~The Administrative Agent also~~ Neither the Agents nor any of their respective directors, officers, employees or agents shall have any responsibility to IMS or any Subsidiary on account of the failure of or delay in performance or breach by any Lender or the Fronting Bank of any of its obligations hereunder or to any Lender or the Fronting Bank on account of the failure of or delay in performance or breach by any other Lender or the Fronting Bank or IMS or any Subsidiary of any of their respective obligations hereunder or under any other Loan Document or in connection herewith 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 ~~any statement made to it orally or by telephone and believed~~ the advice of legal counsel selected by it with respect to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or ~~not taken~~ suffered in good faith by it in accordance with the advice of ~~any~~ such counsel. In no event any Agent be obligated to take any action, ~~accountants~~ or ~~experts~~omit to take any action, in contravention of any applicable law or regulation. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more subagents appointed by the Administrative Agent. The Administrative Agent and any such subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such subagent and to the Related Parties of each Administrative Agent and any such subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative hereby acknowledge that neither Agent shall be ~~discharged from its duties and obligations hereunder. The fees payable~~ under any duty to take any discretionary action permitted to be taken by ~~the Borrower~~ it pursuant to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as Agreement unless it shall ~~from time~~ be requested in writing to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence do so by the ~~Borrower of Permitted Debt Securities and bind the Secured Parties thereby~~Required Lenders.

Appears in 1 contract

Sources: Credit Agreement (International Manufacturing Services Inc)

The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing 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 2.05(j) and Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, Intermediate Holdings the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 2.05(j) and Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Intermediate Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or ~~document,~~ document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by the Administrative Agent. The Administrative Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of each Administrative Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. ~~The~~ Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~Borrower~~Borrower (except if a Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a the Syndication Agent and a the Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no neither the Syndication Agent nor ~~any~~ the Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.

Appears in 1 contract

Sources: Credit Agreement (Wix Filtration Media Specialists, Inc.)

Appears in 1 contract

Sources: Competitive Advance and Revolving Credit Facility Agreement (Sherwin Williams Co)

The Agents. Each of the Lenders and the Issuing ~~Bank~~ Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~For purposes~~ Each of ~~this Article VIII, all references~~ the Canadian Lenders hereby irrevocably appoints the Canadian Agent as its agent and authorizes the Canadian Agent to take such actions on its behalf and to exercise such powers as are delegated to the ~~Administrative~~ Canadian Agent ~~shall be deemed~~ by the terms hereof, together with such actions and powers as are reasonably incidental thereto. Each of the UK Lenders hereby irrevocably appoints the UK Agent as its agent and authorizes the UK Agent to ~~be references~~ take such actions on its behalf and to ~~both~~ exercise such powers as are delegated to the ~~Administrative~~ UK Agent by the terms hereof, together with such actions and ~~the Collateral Agent~~powers as are reasonably incidental thereto. ~~The~~ Each bank serving as ~~the Administrative~~ 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 ~~the Administrative~~ such Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if it were not ~~the Administrative~~ an Agent hereunder. The ~~Administrative Agent~~ 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) ~~the Administrative~~ no Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative~~ no Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that ~~the Administrative~~ such Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~2.05(j) and Section 9.02~~11.02), and (c) except as expressly set forth in the Loan Documents, ~~the Administrative~~ no Agent shall ~~not~~ have any duty to disclose, ~~and~~ or shall ~~not~~ be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower~~ Company or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as ~~Administrative~~ such Agent or any of its Affiliates in any capacity. ~~The Administrative~~ No Agent shall ~~not~~ be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~11.02) or in the absence of its own gross negligence or willful misconduct. ~~The Administrative~~ No Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~Holdings, the~~ a Borrower or a Lender, and ~~the Administrative~~ no Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral or (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to ~~the Administrative~~ such Agent. ~~The Administrative~~ 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. ~~The Administrative~~ 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. ~~The Administrative~~ Each Agent may consult with legal counsel (who may be counsel for ~~the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The Administrative~~ Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by ~~the Administrative~~ such Agent. ~~The Administrative~~ Each Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of each ~~Administrative~~ Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as ~~Administrative~~ an Agent. ~~The Administrative~~ 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 ~~Bank~~ Banks (in the case of the Administrative Agent) and the ~~Borrower~~Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~Borrower~~Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent may, on behalf of the Lenders and the Issuing ~~Bank~~Banks (in the case of a successor Administrative Agent) and in consultation with the Company, appoint a successor Agent, which, in the case of the Administrative Agent ~~which~~ shall be a bank with an office in New York, New York, or an Affiliate of any such bank; in the case of the Canadian Agent, shall be a bank with an office in Toronto, Canada, or an Affiliate of any such bank; and in the case of the UK Agent, shall be a bank with an office in London, England, or an Affiliate of any such bank. The appointment of a successor Canadian Agent or UK Agent shall be subject to the consent of the Administrative Agent (such consent not to be unreasonably withheld). Upon the acceptance of its appointment as ~~Administrative~~ an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~the~~ any Borrower to a successor ~~Administrative~~ Agent shall be the same as those payable to its predecessor unless otherwise agreed between ~~the~~ such Borrower and such successor. After ~~the Administrative~~ an Agent’s resignation hereunder, the provisions of this Article and Section ~~9.03~~ 11.03 shall continue in effect for the benefit of such retiring ~~Administrative~~ Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as ~~Administrative~~ an Agent. Each Lender acknowledges that it has, independently and without reliance upon ~~the Administrative~~ any Agent, any Arranger, any Bookrunner, any Syndication Agent, any Documentation Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon ~~the Administrative~~ any Agent, any Arranger, any Bookrunner, any Syndication Agent, any Documentation Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. ~~The Lenders~~ None of the Arrangers, the Bookrunners or any Syndication Agent or Documentation Agent, if any, identified as such in this ~~Agreement as a Syndication Agent and a Documentation Agent~~ Agreement, shall ~~not~~ have any right, power, obligation, liability, responsibility or duty under this ~~Agreement other than those applicable to all Lenders~~Agreement, except in its capacity, as applicable, as Administrative Agent, Canadian Agent, UK Agent, a Lender or an Issuing Bank hereunder. Without limiting the foregoing, no none of the Arrangers, the Bookrunners or the Syndication ~~Agent nor any~~ Agents or Documentation ~~Agent~~ Agents, if any, shall have or be deemed to have a fiduciary relationship with any Lender. Except with respect to the exercise of setoff rights of any Lender, in accordance with Section 11.08, the proceeds of which are applied in accordance with this Agreement, each Lender agrees that it will not take any action, nor institute any actions or proceedings, against any Borrower or with respect to any Loan Document, without the prior written consent of the Required Lenders or, as may be provided in this Agreement or the other Loan Documents, with the consent of the Administrative Agent. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement. In its capacity, the Administrative Agent is a “representative” of the Holders of Secured Obligations within the meaning of the term “secured party” as defined in the UCC. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Holder of Secured Obligations (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Holders of Secured Obligations upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Holders of Secured Obligations any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of or for the benefit of the Administrative Agent, on behalf of the Holders of Secured Obligations. The Lenders hereby authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral (i) as described in Sections 5.10(e) andSection 11.15(b), (ii) as permitted by, but only in accordance with, the terms of the applicable Loan Document; or (iii) if approved, authorized or ratified in writing by the Required Lenders, unless such release is required to be approved by all of the Lenders hereunder. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release particular types or items of Collateral pursuant hereto. Upon any sale or transfer of assets constituting Collateral which is permitted pursuant to the terms of any Loan Document, or consented to in writing by the Required Lenders or all of the Lenders, as applicable, and upon at least five (5) Business Days’ prior written request by the Company to the Administrative Agent, the Administrative Agent shall (and is hereby irrevocably ~~agrees~~ authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for the benefit of the Holders of Secured Obligations herein or pursuant hereto upon the Collateral that was sold or transferred; provided, however, that (i) the Administrative Agent shall not be required to execute any such document on terms which, in the Administrative Agent’s opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Secured Obligations or any Liens upon (or obligations of the Company or any Subsidiary in respect of) all interests retained by the Company or any Subsidiary, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the Collateral. Each Borrower, on its behalf and on behalf of its Subsidiaries, and each Lender, on its behalf and on the behalf of its affiliated Holders of Secured Obligations, hereby irrevocably constitute the Administrative Agent as the holder of an irrevocable power of attorney (fondé de pouvoir within the meaning of Article 2692 of the Civil Code of Québec) in order to hold hypothecs and security granted by each Borrower or any Subsidiary on property pursuant to the laws of the Province of Quebec to secure obligations of any Borrower or any Subsidiary under any bond, debenture or similar title of indebtedness issued by any Borrower or any Subsidiary in connection with this Agreement, and agree that the Administrative Agent may ~~enter into~~ act as the ~~First Lien Intercreditor~~ bondholder and mandatary with respect to any bond, debenture or similar title of indebtedness that may be issued by any Borrower or any Subsidiary and pledged in favor of the Holders of Secured Obligations in connection with this Agreement. Notwithstanding the provisions of Section 32 of the An Act respecting the special powers of legal persons (Quebec), JPMorgan Chase Bank, N.A. as Administrative Agent may acquire and be the holder of any bond issued by any Borrower or any Subsidiary in connection with this Agreement (i.e., the fondé de pouvoir may acquire and hold the first bond issued under any deed of hypothec by any Borrower or any Subsidiary). The Administrative Agent is hereby authorized to execute and deliver any documents necessary or appropriate to create and perfect the rights of pledge for the benefit of the Holders of Secured Obligations including a right of pledge with respect to the entitlements to profits, the balance left after winding up and the voting rights of the Company as ultimate parent of any subsidiary of the Company which is organized under the laws of the Netherlands and the Equity Interests of which are pledged in connection herewith (a “Dutch Pledge”). Without prejudice to the provisions of this Agreement and the ~~Second Lien Intercreditor agreement~~other Loan Documents, ~~without~~ the parties hereto acknowledge and agree with the creation of parallel debt obligations of the Company or any ~~further consent from~~ relevant Subsidiary as will be described in any ~~Secured Party~~Dutch Pledge (the “Parallel Debt”), ~~in connection with~~ including that any ~~incurrence~~ payment received by the ~~Borrower~~ Administrative Agent in respect of ~~Permitted~~ the Parallel Debt ~~Securities and bind~~ will conditionally upon such payment not subsequently being avoided or reduced by virtue of any provisions or enactments relating to bankruptcy, insolvency, preference, liquidation or similar laws of general application be deemed a satisfaction of a pro rata portion of the corresponding amounts of the Secured ~~Parties thereby~~Obligations, and any payment to the Holders of Secured Obligations in satisfaction of the Secured Obligations shall conditionally upon such payment not subsequently being avoided or reduced by virtue of any provisions or enactments relating to bankruptcy, insolvency, preference, liquidation or similar laws of general application be deemed as satisfaction of the corresponding amount of the Parallel Debt. The parties hereto acknowledge and agree that, for purposes of a Dutch Pledge, any resignation by the Administrative Agent is not effective until its rights under the Parallel Debt are assigned to the successor Administrative Agent.

Appears in 1 contract

Sources: Credit Agreement (Yrc Worldwide Inc)

The Agents. Each of the Lenders and ~~the~~ Issuing ~~Bank~~ Banks hereby irrevocably appoints ~~the Administrative Agent~~ JPMorgan Chase Bank, N.A. as its agent and authorizes ~~the Administrative Agent~~ JPMorgan Chase Bank, N.A. to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~For purposes~~ Each Lender acknowledges that Citibank, N.A., Credit Suisse AG, Cayman Islands Branch, Mizuho Bank, Ltd. and The Bank of ~~this Article VIII~~Tokyo-Mitsubishi UFJ, ~~all references to the Administrative Agent~~ Ltd. shall be ~~deemed~~ Syndication Agents with respect to this Agreement and that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., PNC Bank, National Association, The Northern Trust Company and UBS Securities LLC shall be ~~references~~ Documentation Agents with respect to ~~both the Administrative Agent and the Collateral Agent~~this Agreement. The Syndication Agents and Documentation Agents shall have no duties in such capacities in addition to any duties in their capacity as Lenders. Each bank serving as ~~the Administrative~~ 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 ~~the Administrative~~ an Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not ~~the Administrative~~ an Agent hereunder. ~~The Administrative~~ No Agent shall ~~not~~ have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, (a) ~~the Administrative~~ no Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative~~ no Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that the Administrative Agent is required to exercise in writing ~~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 2.05(j) and Section 9.02)~~entitled to so require, and (c) except as expressly set forth ~~in the Loan Documents~~herein, ~~the Administrative~~ no Agent shall ~~not~~ have any duty to disclose, ~~and~~ nor shall ~~not~~ such Agent be liable for the failure to disclose, any information relating to ~~Holdings,~~ the Borrower or any of the Subsidiaries that is communicated to or obtained by ~~the bank serving as Administrative~~ such Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the ~~Required~~ Lenders ~~(or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02)~~ entitled to so require or in the absence of its own gross negligence or willful misconduct. ~~The Administrative~~ No Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~Holdings,~~ the Borrower or a Lender, and ~~the Administrative~~ no Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made to any Lender in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~herewith or any other Loan Document, (iii) the performance or observance by the Borrower of any of the covenants, agreements or other terms or or, except as provided in clause (v) below, conditions set forth ~~in any Loan Document~~herein, (iv) with respect to parties other than such Agent, the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. ~~The Administrative~~ 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 in good faith to be genuine and to have been signed or sent by the proper Person. ~~The Administrative~~ Each Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. ~~The Administrative~~ 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 good faith in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by the Administrative ~~Agent~~Agent and for which it is responsible. The Administrative Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent reasonably selected by the Administrative Agent and to the Related Parties of ~~each Administrative Agent~~ the Agents and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as ~~Administrative~~ Agent. ~~The~~ Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the Borrower. Upon any such resignation, the ~~Required~~ Majority Lenders shall have the right, ~~in consultation~~ with the ~~Borrower~~consent of the Borrower (which consent shall not be required if at the time of such appointment any Default or Event of Default shall have occurred and be continuing), to appoint a successor. If no successor shall have been so appointed by the ~~Required~~ Majority Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing ~~Bank~~Banks, appoint a successor Administrative Agent which shall be a commercial bank with an office in New York, New ~~York, or an Affiliate~~ York and having a combined capital and surplus of ~~any such bank~~at least $1,000,000,000. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring Administrative Agent, its subagents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon ~~the Administrative~~ 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~~Agreement and each other Loan Document to which it is a party. Each Lender represents that it has not relied upon the Unrestricted Margin Stock in its credit analysis or its decision to enter into this Agreement and each other Loan Document to which it is a party. Each Lender also acknowledges that it will, independently and without reliance upon ~~the Administrative~~ any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, ~~any~~ each other Loan ~~Document or~~ Documents to which it is a party, any related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.

Appears in 1 contract

Sources: Revolving Credit Agreement (CSX Corp)

Appears in 1 contract

Sources: Credit Agreement (Leap Wireless International Inc)

The Agents. Each of the Lenders ~~and the Issuing Bank~~ hereby irrevocably appoints ~~the Administrative~~ each Agent as its agent and authorizes ~~the Administrative~~ such Agent to take such actions on its behalf and to exercise such powers as are delegated to ~~the Administrative~~ such Agent by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The~~ Each bank serving as ~~the Administrative~~ 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 ~~the Administrative~~ an Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Parent or any Subsidiary or other Affiliate thereof as if it were not ~~the Administrative~~ an Agent hereunder. ~~The Administrative~~ No Agent shall ~~not~~ have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, (a) ~~the Administrative~~ no Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative~~ no Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that the Administrative Agent is required to exercise in writing ~~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 2.05(j) and Section 9.02)~~Lenders, and (c) except as expressly set forth ~~in the Loan Documents~~herein, ~~the Administrative~~ no Agent shall ~~not~~ have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower~~ Parent or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as ~~Administrative~~ an Agent or any of its Affiliates in any capacity. ~~The Administrative~~ No Agent shall ~~not~~ be liable for any action taken or not taken by it with the consent or at the request of the ~~Required~~ requisite Lenders ~~(or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02)~~ or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. ~~The Administrative~~ No Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~Holdings~~the Parent, ~~the~~ a Borrower or a Lender, and ~~the Administrative~~ no Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document~~this Agreement, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the ~~Administrative Agent~~Agents. ~~The Administrative~~ 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. ~~The Administrative~~ 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. The Administrative Agent may consult with legal counsel (who may be counsel for any of the ~~Borrower~~Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by the Administrative Agent. The Administrative Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of ~~each~~ the Administrative Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. ~~The~~ Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the ~~Borrower~~Parent. Upon any such resignation, the Required Lenders shall have the right, ~~in consultation~~ with the ~~Borrower~~prior written consent of the 57 Parent (such consent shall not be unreasonably withheld and shall not be required if an Event of Default under clause (h) or (i) of Section 7.01 has occurred and is continuing with respect to the Parent), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Bank~~Lenders, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Parent to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Parent and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring Administrative Agent, its subagents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the ~~Administrative~~ 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 Administrative~~ any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. ~~The Lenders~~ Notwithstanding anything to the contrary contained herein, no Lender identified ~~in this Agreement~~ as ~~a Syndication Agent and a Documentation Agent~~ an "Agent", other than the Administrative Agent, shall ~~not~~ have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all ~~Lenders~~Lenders as such. Without limiting the foregoing, ~~no Syndication Agent nor any Documentation Agent~~ none of the Lenders so identified shall have or be deemed to have a any fiduciary relationship with any Lender. Each Lender ~~irrevocably agrees~~ acknowledges that it has not relied, and will not rely, on any of the ~~Administrative Agent may~~ Lenders so identified in deciding to enter into ~~the First Lien Intercreditor~~ this Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties therebyor not taking action hereunder.

Appears in 1 contract

Sources: Credit Agreement (Air Products & Chemicals Inc /De/)

Appears in 1 contract

Sources: Term Loan and Revolving Credit Agreement (Goodyear Tire & Rubber Co /Oh/)

The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes~~ Without limiting the generality of ~~this Article VIII~~the foregoing, ~~all references~~ each Lender hereby 105 authorizes GE Capital to consent, on behalf of each Lender, to an Interim Order substantially in the form attached as Exhibit F, to the ~~Administrative Agent shall be deemed~~ Canadian Interim Order, to the Final Order and the Canadian Final Order to be ~~references to both~~ negotiated between the ~~Administrative Agent~~ Borrowers, the Agents and the ~~Collateral Agent~~Committee. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Parent Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing ~~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 ~~2.05(j) and Section 9.02~~10.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the Parent Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~10.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~Holdings,~~ the Parent Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for any of the ~~Borrower~~Borrowers), independent accountants and other experts selected by it, and 106 shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by the Administrative Agent. The Administrative Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of ~~each~~ the Administrative Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. ~~The~~ Subject to the appointment and acceptance of a successor to the Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the other Agents, the Lenders, the Issuing Bank and the Parent Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~in consultation~~ with the ~~Borrower~~consent of the Parent Borrower (such consent not to be unreasonably withheld), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent ~~which~~ that 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Parent Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Parent Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~9.03~~ 10.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The ~~Lenders identified in~~ provisions of this ~~Agreement~~ Article shall apply to the Collateral Agent as a though named herein as the Administrative Agent. Notwithstanding any other provision contained herein, neither the Arranger nor the Syndication Agent ~~and a Documentation Agent shall not~~ shall, in their capacity as such, have any ~~right, power, obligation, liability, responsibility or duty~~ responsibilities under this Agreement or the other ~~than those applicable to all Lenders~~Loan Documents. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.107

Appears in 1 contract

Sources: Credit Agreement (Pliant Corp)

The Agents. Each of the Lenders ~~and the Issuing Bank~~ hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent (for purposes of this Article VIII, the Administrative Agent and the Collateral Agent are referred to collectively as the “Agents”) its agent and authorizes the ~~Administrative Agent~~ Agents to take such actions on its ~~behalf~~ behalf, including the execution of the other Loan Documents, and to exercise such powers as are delegated to ~~the Administrative~~ such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes~~ Without limiting the generality of the foregoing, the Agents are hereby expressly authorized by the Lenders to execute any and all documents (including releases and the Security Documents) 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 ~~Article VIII, all references~~ Agreement and the Security Documents. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent ~~shall be deemed to be references to both the Administrative Agent and~~ or the Collateral ~~Agent~~Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties. The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Each 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, 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~~ any of their respective Affiliates as if it were not ~~the Administrative~~ an Agent hereunder. ~~The Administrative~~ No Agent shall ~~not~~ have any duties or obligations except those expressly set forth in the Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (a) ~~the Administrative~~ no Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative~~ no Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that ~~the Administrative~~ such Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~2.05(j) and Section 9.02~~9.08), ~~and~~ (c) except as expressly set forth in the Loan Documents, ~~the Administrative~~ no Agent shall have any duty to disclose, nor shall it be liable for the failure to disclose, any information relating to the Borrower or any of the Subsidiaries or any of their respective Affiliates that is communicated to or obtained by the bank serving as an Agent or any of its Affiliates in any capacity; provided that the no Agent shall be required to take any action that, in its reasonable opinion or the reasonable opinion of its counsel, may expose such Agent to liability (which is not indemnified) 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 and (d) no Agent shall, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the Borrower or any of ~~the Subsidiaries~~ its Affiliates that is communicated to or obtained by the ~~bank~~ Person serving as ~~Administrative~~ an Agent or any of its Affiliates in any capacity. ~~The Administrative~~ No Agent shall ~~not~~ be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary or as such Agent shall believe in good faith shall be necessary, under the circumstances as provided in ~~Section 9.02~~Sections 9.08 and Article VII) or in the absence of its own (or its Related Parties’) gross ~~negligence~~ negligence, bad faith or willful ~~misconduct~~misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. ~~The Administrative~~ No Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~Holdings,~~ the Borrower or a Lender, and ~~the Administrative~~ no Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral or (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to ~~the Administrative~~ such Agent. ~~The Administrative~~ 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ signed, sent or ~~sent~~ otherwise authenticated by the proper Person. ~~The Administrative~~ Each Agent may also ~~may~~ rely upon any statement made to it orally or by telephone and believed by it to be have been made by the proper Person, and shall not incur any liability for relying thereon. ~~The Administrative~~ In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, each Agent may presume that such condition is satisfactory to such Lender unless such Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. 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 any such counsel, accountants or experts. ~~The Administrative~~ Each Agent may perform any and all its duties and exercise its rights and powers under any Loan Document by or through any one or more sub-agents appointed by it (other than a Disqualified Institution). Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through ~~any one or more subagents appointed by the Administrative Agent. The Administrative Agent and any such subagent may perform any and all its duties and exercise its rights and powers through~~ their respective Related ~~Parties~~Parties (other than a Disqualified Institution). The exculpatory provisions of the preceding paragraphs shall apply to any such ~~subagent~~ sub-agent and to the Related Parties of each ~~Administrative~~ Agent in such capacity and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the ~~credit facilities~~ term facility provided for herein as well as activities as ~~Administrative~~ Agent. ~~The Administrative~~ Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, each Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~in consultation~~ with the consent (not to be unreasonably withheld or delayed) of the Borrower, to appoint a successor; provided that during the existence and continuance of an Event of Default no such consent of the Borrower shall be required. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its ~~resignation~~resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Agent may (but shall not be obligated to), on behalf of the Lenders, appoint a successor Agent with the prior consent (not to be unreasonably withheld or delayed) of the Borrower; provided that during the existence and continuance of an Event of Default no such consent of the Borrower shall be required. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date. After an Agent’s resignation hereunder, the provisions of this Article and Section 9.05 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while acting as Agent. In addition, notwithstanding the effectiveness of a resignation by the Administrative Agent hereunder, (a) the retiring Administrative Agent may, ~~on behalf~~ in its sole discretion, continue to provide the services of the Administrative Agent solely with respect to administering, collecting and delivering any payments of principal, interest, fees, premium or other amounts in respect of the Loans and maintaining the books and records relating thereto (such Administrative Agent acting in such capacity, the “Paying Agent”), (b) the term “Administrative Agent” when used in connection with any such functions shall be deemed to mean such retiring Administrative Agent in its capacity as the Paying Agent and (c) such retiring Administrative Agent shall, in its capacity as the Paying Agent, continue to be vested with and enjoy all of the rights and benefits of an Administrative Agent hereunder. With effect from the Resignation Effective Date, (1) the retiring Agent shall be discharged from its duties and obligations under the Loan Documents and (2) except for any indemnity payments owed to the retiring Agent, all payments, communications and determinations provided to be made by, to or through such Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders ~~and the Issuing Bank,~~ appoint a successor ~~Administrative~~ Agent ~~which shall be a bank with an office in New York, New York, or an Affiliate of any such bank~~as provided for above. Upon the acceptance of ~~its~~ a successor’s appointment as ~~Administrative~~ an Agent ~~hereunder by a successor~~hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent (other than any rights to indemnity payments owed to the retiring Agent), and the retiring ~~Administrative~~ Agent shall be ~~discharged~~ discharged, to the extent not already discharged, from all of its duties and obligations ~~hereunder~~hereunder or under the other Loan Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the ~~Administrative~~ retiring Agent’s resignation ~~hereunder~~under the Loan Documents, the provisions of this Article and Section ~~9.03~~ 9.06 shall continue in effect for the benefit of such retiring ~~Administrative~~ Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it the retiring Agent was acting as ~~Administrative~~ an Agent. The Arranger, in its capacity as such, shall have no duties or responsibilities, and shall incur no liability, under this Agreement or any other Loan Document. Each Lender acknowledges that it has, independently and without reliance upon the ~~Administrative Agent~~ Agents, the Arranger, or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the ~~Administrative Agent~~ Agents, the Arranger or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any other Loan ~~Document or~~ Document, any related agreement or any document furnished hereunder or thereunder. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Agents (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Agents shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Agents (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Agents and their respective agents and counsel and all other amounts earned, due and payable to the Lenders and the Agents under Sections 2.05 and 9.06 allowed in such judicial proceeding; and (b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Agents and, in the event that the Agents shall consent to the making of such payments directly to the Lenders, to pay to the Agents any amount due for the reasonable compensation, expenses, disbursements and advances of the Agents and their respective agents and counsel, and any other amounts due the Agents under Sections 2.05 and 9.06. The ~~Lenders identified~~ Secured Parties irrevocably authorize each Agent, at its option and in ~~this Agreement~~ its discretion: (a) to release any Lien on any property granted to or held by the Collateral Agent under any Loan Document (i) upon payment in full of all Obligations (other than contingent obligations), (ii) that is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any sale or other disposition permitted under the Loan Documents, or (iii) subject to Section 9.08, if approved, authorized or ratified in writing by the Required Lenders; (b) to subordinate any Lien on any property granted to or held by the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted by Sections 6.02(g) and 6.02(h); (c) to release any Guarantor from its obligations under the Guaranty and each other Loan Document if such Person ceases to be a Subsidiary (or otherwise constitutes an Excluded Subsidiary) as a ~~Syndication Agent~~ result of a transaction permitted under the Loan Documents; and ~~a Documentation Agent~~ (d) to enter into each Security Document (including the Intercreditor and Subordination Agreement) and any customary intercreditor agreements as required herein for the benefit of the Lenders and the other Secured Parties and the Lenders hereby agree to be bound thereby. Upon request by the Agents at any time, the Required Lenders will confirm in writing the Collateral Agent’s authority to release or the Administrative Agent’s authority to subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Article VIII. The Agents shall not ~~have any right, power, obligation, liability, responsibility~~ be responsible for or ~~duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to~~ have a ~~fiduciary relationship with~~ duty to ascertain or inquire into any ~~Lender~~representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall any Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral. ~~Each Lender irrevocably agrees that~~ To the extent required by any applicable law, the Administrative Agent may ~~enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent~~ withhold from any ~~Secured Party, in connection with~~ interest payment to any ~~incurrence by~~ Lender an amount equivalent to any applicable withholding tax. If the ~~Borrower of Permitted Debt Securities and bind the Secured Parties thereby.~~Internal Revenue Service or any other Governmental Authori

Appears in 1 contract

Sources: Credit Agreement (Affirmative Insurance Holdings Inc)

Appears in 1 contract

Sources: Credit Agreement (Aol Time Warner Inc)

The Agents. Each of the Lenders ~~and the Issuing Bank~~ hereby irrevocably appoints ~~the Administrative~~ each Agent as its agent and authorizes ~~the Administrative~~ each Agent to take such actions on its behalf and to exercise such powers as are delegated to ~~the Administrative~~ such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The bank~~ Any Person serving as ~~the Administrative~~ 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 ~~the Administrative~~ an Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Parent or any Subsidiary or other Affiliate thereof as if it were not ~~the Administrative~~ an Agent hereunder. ~~The Administrative~~ Neither Agent shall ~~not~~ have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) ~~the Administrative~~ neither Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative~~ neither Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that ~~the Administrative~~ such Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~2.05(j) and Section~~ 9.02), and (c) except as expressly set forth in the Loan Documents, ~~the Administrative~~ neither Agent shall ~~not~~ have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower~~ Parent or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the ~~bank~~ Person serving as ~~Administrative~~ Agent or any of its Affiliates in any capacity. ~~The Administrative~~ Neither Agent shall ~~not~~ be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. ~~The Administrative~~ Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~Holdings, the Borrower~~ a Loan Party or a Lender, and ~~the Administrative~~ neither Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to ~~the Administrative~~ such Agent. ~~The Administrative~~ 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. ~~The Administrative~~ 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. ~~The Administrative~~ Each Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~Parent or the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The Administrative~~ Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by ~~the Administrative~~ such Agent. ~~The Administrative~~ Each Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of each ~~Administrative~~ Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as ~~Administrative~~ Agent. ~~The Administrative~~ Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, an Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the ~~Borrower~~Borrowers. ~~Upon any such resignation~~In addition, the Required Lenders shall have the ~~right~~right to remove the Collateral Agent at any time. Upon any such resignation or removal, ~~in consultation with~~ the ~~Borrower,~~ Required Lenders shall have the right to appoint a ~~successor~~successor with the approval of the Borrowers (which approval shall not be unreasonably withheld or delayed and, if an Event of Default has occurred and is continuing, shall not be required; and, in the case of removal of the Collateral Agent, no approval shall be required if the successor is the same Person serving as Administrative Agent or an Affiliate of such Person). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its ~~resignation~~resignation or after the Required Lenders give notice of removal of the Collateral Agent (as applicable), then the retiring Agent may (or, in the case of removal of the Collateral Agent, the Administrative Agent may), on behalf of the ~~Lenders and the Issuing Bank~~Lenders, appoint a successor ~~Administrative~~ Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such ~~bank~~bank (or, in the case of a successor Collateral Agent, may be the same Person that is serving as Administrative Agent or an affiliate of such Person). Upon the acceptance of its appointment as ~~Administrative~~ Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Borrowers to a successor ~~Administrative~~ Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Borrowers and such successor. After ~~the Administrative~~ an Agent’s 's resignation or removal hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring ~~Administrative~~ or removed Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as ~~Administrative~~ Agent. Each Lender acknowledges that it has, independently and without reliance upon ~~the Administrative~~ 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 Administrative~~ 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, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.

Appears in 1 contract

Sources: Credit Agreement (Winstar Communications Inc)

Appears in 1 contract

Sources: Credit Agreement (Leap Wireless International Inc)

The Agents. Each of the Lenders ~~and the Issuing Bank~~ hereby irrevocably appoints the Administrative Agent and Collateral Agent as its agent and authorizes the Administrative Agent and Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent and Collateral Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The Administrative Agent shall act as the Collateral Agent under the Loan Documents. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder, and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied ~~duties~~duties to any Lender, regardless of whether a Default or Event of Default has occurred and is continuing, (b) each Lender agrees (i) that the use of the term “agent” herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied or express obligations arising under agency doctrine of any applicable law, and is used solely as a matter of market custom to reflect an exclusively administrative relationship between contracting parties, and (ii) that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby, (c) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing 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 ~~2.05(j) and Section~~ 9.02), and (cd) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more subagents appointed by the Administrative Agent; provided, however, that the Loan Parties shall make all payments under any Loan Document directly to the Administrative Agent. The Administrative Agent and any such subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such subagent and to the Related Parties of each Administrative Agent and any such subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a ~~successor~~successor who shall either be (i) a “U.S. person” and a “financial institution” within the meaning of United States Treasury Regulations Section 1.1441-1 or (ii) a U.S. branch of a non-U.S. financial institution that has agreed to be treated as a “United States person” within the meaning of Section 7701(a)(30) of the Code. 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 and the Issuing Bank~~Lenders, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender (i) represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business, and that it is capable of evaluating and understanding the terms, conditions and risks of becoming a Lender under this Agreement, including in the context of related transactions to be entered into by the Borrower, and multiple roles to be performed by the Administrative Agent or its Affiliates, in connection herewith or therewith, and (ii) acknowledges that it has, independently and without reliance upon the Administrative ~~Agent or~~ Agent, any other Lender or any Related Party of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement~~. Each Lender also acknowledges that it~~ , and will, independently and without reliance upon the Administrative ~~Agent or~~ Agent, any other Lender or any Related Party of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into any and all documents with respect to Collateral and the rights of the Secured Parties with respect thereto (including the First Lien Intercreditor Agreement or any Junior Lien Intercreditor Agreement, if applicable) as contemplated by and in accordance with the provisions of this Agreement and the ~~Second Lien Intercreditor agreement,~~ Security Documents without any further consent from any Secured Party, ~~in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby~~which terms shall be reasonably satisfactory to Administrative Agent.

Appears in 1 contract

Sources: First Lien Term Loan Credit Agreement (Select Medical Holdings Corp)

The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing 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 2.05(j) and Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 2.05(j) or Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more subagents appointed by the Administrative Agent. The Administrative Agent and any such subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such subagent and to the Related Parties of each Administrative Agent and any such subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Each of the Lenders, the Issuing Bank and the Loan Parties agree, that the Administrative Agent may subject to Section 9.01(b), but shall not be obligated to, make the Approved Electronic Communications available to the Lenders and the Issuing Bank by posting such Approved Electronic Communications on IntraLinks™ or a substantially similar electronic platform chosen by the Administrative Agent to be its electronic transmission system (the “Approved Electronic Platform”) and each of the Loan Parties agrees to make the Approved Electronic Communications available to the Administrative Agent in an acceptable soft copy or electronic format. Although the Approved Electronic Platform and its primary web portal are secured with generally-applicable security procedures and policies implemented or modified by the Administrative Agent from time to time (including, as of the Effective Date, a dual firewall and a User ID/Password Authorization System) and the Approved Electronic Platform is secured through a single-user-per-deal authorization method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders and the Issuing Bank and the Loan Parties acknowledge and agree that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution. In consideration for the convenience and other benefits afforded by such distribution and for the other consideration provided hereunder, the receipt and sufficiency of which is hereby acknowledged, each of the Lenders, the Loan Parties and the Issuing Bank hereby approve distribution of the Approved Electronic Communications through the Approved Electronic Platform and understands and assumes the risks of such distribution. The Approved Electronic Communications and the Approved Electronic Platform are provided “as is” and “as available”. None of the Administrative Agent or any of its Affiliates or any of their respective officers, directors, employees, agents, advisors or representatives (the “Agent Affiliates”) warrant the accuracy, adequacy or completeness of the Approved Electronic Communications and the Approved Electronic Platform and each expressly disclaims liability for errors or omissions in the Approved Electronic Communications and the Approved Electronic Platform. No warranty of any kind, express, implied or statutory (including, without limitation, any warranty of merchantability, fitness for a particular purpose, noninfringement of third party rights or freedom from viruses or other code defects) is made by the Agent Affiliates in connection with the Approved Electronic Communications or the Approved Electronic Platform. Each of the Lenders, the Issuing Bank, and the Loan Parties agrees that the Administrative Agent may, but (except as may be required by applicable law) shall not be obligated to, store the Approved Electronic Communications on the Approved Electronic Platform in accordance with the Administrative Agent’s generally-applicable document retention procedures and policies. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a the Syndication Agent and a the Documentation ~~Agent~~ Agents shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no neither the Syndication Agent nor ~~any~~ the Documentation ~~Agent~~ Agents shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.

Appears in 1 contract

Sources: Credit Agreement (Usp Mission Hills, Inc.)

The Agents. SECTION 8.1. Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent, the Documentation Agent and the Syndication Agents as its ~~agent~~ agents, in each agent's capacity as such agent, and authorizes the Administrative Agent, the Documentation Agent and the Syndication Agents to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent, the Documentation Agent and the Syndication Agents by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent.~~ The bank serving as the Administrative Agent, the Documentation Agent and the Syndication Agents, as the case may be, hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, the Documentation Agent or the Syndication Agents, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent, the Documentation Agent or the Syndication Agents hereunder. The Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, (a) the Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that the Administrative Agent, the Documentation Agent or a Syndication Agent, as the case may be, is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~2.05(j) and Section 9.02~~9.2), and (c) except as expressly set forth ~~in the Loan Documents~~herein, the Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower~~ Company or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, or any of its Affiliates in any capacity. The Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~9.2) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower~~ Borrowers or a Lender, and the Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document~~this Agreement, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be. The Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, may consult with legal counsel (who may be counsel for the ~~Borrower~~Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by the Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be. The Administrative Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of ~~each~~ the Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, and any such ~~subagent~~sub-agent of such Related Parties, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent, Documentation Agent or Syndication Agents, as the case may be. ~~The~~ Subject to the appointment and acceptance of a successor Administrative Agent, Documentation Agent or Syndication Agent, as the case may be, as provided in this paragraph, (a) the Administrative Agent, the Documentation Agent or a Syndication Agent may resign at any time by notifying the Lenders, the Issuing Bank and the ~~Borrower~~Company and (b) the Required Lenders may remove the Administrative Agent in the event of the Administrative Agent's gross negligence or willful misconduct. Upon any such ~~resignation~~resignation or removal, the Required Lenders shall have the right, in consultation with the ~~Borrower~~Company (so long as no Event of Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent, Documentation Agent or Syndication Agent, as the case may be, gives notice of its resignation, then the retiring Administrative Agent, Documentation Agent or Syndication Agent, as the case may be, may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent, Documentation Agent or Syndication 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; provided that such successor Administrative Agent shall have total assets of not less than $10,000,000,000. Upon the acceptance of its appointment as Administrative Agent, Documentation Agent or Syndication Agent, as the case may be, hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, Documentation Agent or Syndication Agent, as the case may be, and the retiring Administrative Agent, Documentation Agent or Syndication Agent, as the case may be, shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Company to a successor Administrative Agent, Documentation Agent or Syndication Agent, as the case may be, shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Company and such successor. After the resignation of the Administrative Agent~~’s resignation hereunder~~, Documentation Agent or a Syndication Agent, as the case may be, the provisions of this Article and Section ~~9.03~~ 9.3 shall continue in effect for the benefit of such retiring Administrative Agent, Documentation Agent or Syndication Agent, as the case may be, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent, Documentation Agent or Syndication Agent, as the case may be. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.

Appears in 1 contract

Sources: Credit Agreement (Carey W P & Co LLC)

The Agents. ~~Each~~ In order to expedite the transactions contemplated by this Agreement, The Chase Manhattan Bank is hereby appointed to act as Administrative Agent and Collateral Agent on behalf of the Lenders 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 ~~appoints the Administrative Agent as its agent and~~ authorizes the ~~Administrative Agent~~ Agents to take such actions on ~~its~~ behalf of such Lender or assignee or the Issuing Bank and to exercise such powers as are specifically delegated to the ~~Administrative Agent~~ Agents by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes~~ The Administrative Agent is hereby expressly authorized by the Lenders and the Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of ~~this Article VIII~~the Lenders and the Issuing Bank all payments of principal of and interest on the Loans, all ~~references~~ payments in respect of L/C Disbursements and all other amounts due to the Lenders hereunder, and to distribute to each Lender or the Issuing Bank on the due date therefor its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Borrower of any Event of Default specified in this Agreement of which the Administrative Agent ~~shall be deemed~~ has actual knowledge acquired in connection with its agency hereunder; and (c) to ~~be references~~ distribute promptly to ~~both~~ each Lender copies of all notices, financial statements and other materials delivered by the ~~Administrative Agent and the Collateral Agent. The bank serving~~ Borrower pursuant to this Agreement as ~~the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not~~ received by the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, the Agents are hereby expressly authorized to execute any and all documents (aincluding releases) with respect to the ~~Administrative Agent shall not be subject to any fiduciary or other implied duties~~Collateral and the rights of the Secured Parties with respect thereto, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly as contemplated by and in accordance with the ~~Loan Documents that~~ provisions of this Agreement and the ~~Administrative Agent is required to exercise in writing as directed by~~ Security Documents. Neither the ~~Required Lenders (~~Agents nor any of their respective directors, officers, employees or ~~such other number or percentage of the Lenders as~~ agents shall be ~~necessary under the circumstances~~ liable as provided in Section 2.05(j) and Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable such for any action taken or ~~not taken~~ omitted by ~~it with the consent~~ any of them except for its or ~~at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its~~ his own gross negligence or ~~willful~~ wilful misconduct~~. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings~~, ~~the Borrower~~ or ~~a Lender, and the Administrative Agent shall not~~ be responsible for ~~or have any duty to ascertain or inquire into (i)~~ any statement, warranty or representation ~~made in~~ herein or ~~in connection with any Loan Document, (ii)~~ the contents of any ~~certificate, report or other~~ document delivered ~~thereunder or~~ in connection ~~therewith~~herewith, ~~(iii)~~ or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrower or any other Loan Party of any of the ~~covenants~~terms, conditions, covenants or agreements ~~or other terms or conditions set forth~~ contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due execution, ~~(iv) the~~ genuineness, validity, ~~enforceability,~~ enforceability or effectiveness ~~or genuineness~~ of ~~any Loan Document~~ this Agreement or any other ~~agreement, instrument~~ Loan Documents or ~~document~~other instruments or agreements. 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 (v) or, in the ~~satisfaction~~ case of any ~~condition set forth~~ matter requiring the approval of all the Lenders, in ~~Article IV~~ accordance with written instructions signed by all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or ~~elsewhere~~ inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall, in ~~any Loan Document, other than to confirm receipt~~ the absence of ~~items expressly required to be delivered~~ knowledge to the ~~Administrative Agent. The Administrative Agent shall~~ contrary, be entitled to rely ~~upon, and shall not incur~~ on any ~~liability for relying upon, any notice, request, certificate, consent, statement, instrument,~~ instrument or document ~~or other writing~~ believed by it in good faith to be genuine and correct and to have been signed or sent by the proper ~~Person~~Person or Persons. ~~The Administrative Agent also~~ Neither the Agents nor any of their respective directors, officers, employees or agents shall have any responsibility to the Borrower or any other Loan Party on account of the failure of or delay in performance or breach by any Lender or the Issuing Bank of any of its obligations hereunder or to any Lender or the Issuing Bank on account of the failure of or delay in performance or breach by any other Lender or the Issuing Bank or the Borrower or any other Loan Party of any of their respective obligations hereunder or under any other Loan Document or in connection herewith 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 ~~any statement made to it orally or by telephone and believed~~ the advice of legal counsel selected by it with reasonable care with respect to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, all matters arising hereunder and shall not be liable for any action taken or ~~not taken~~ suffered in good faith by it in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. The ~~Administrative~~ Lenders hereby acknowledge that no Agent ~~may perform~~ shall be under any ~~and all its duties and exercise its rights and powers~~ duty to take any discretionary action permitted to be taken by ~~or through any one or more subagents appointed~~ it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the ~~Administrative Agent~~Required Lenders. The Administrative Agent and any such subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such subagent and Subject to the ~~Related Parties~~ appointment and acceptance of ~~each Administrative~~ a successor Agent ~~and~~ as provided below, any such subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the ~~right, in consultation with the Borrower,~~ right to appoint a successor, which successor shall be reasonably acceptable to the Borrower. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.100

Appears in 1 contract

Sources: Credit Agreement (Westinghouse Air Brake Co /De/)

The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Paying Agent on behalf of the Lenders and Issuing Banks, and JPMCB and Bank of America, N.A. are hereby appointed to act as Administrative Agents on behalf of the Lenders and Issuing Banks. Each of the Lenders and ~~the~~ Issuing ~~Bank~~ Banks hereby ~~irrevocably appoints the Administrative Agent as its agent and~~ authorizes ~~the Administrative~~ each Agent to take such actions on ~~its~~ behalf of such Lender or Issuing Bank, as the case may be, and to exercise such powers as are specifically delegated to ~~the Administrative~~ such Agent by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. ~~For~~ The Paying Agent is hereby expressly authorized by the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Banks all payments of principal of and interest on the Loans and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or any Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Borrower of any Event of Default specified in this Agreement of which the Paying 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 Paying Agent. It is understood that the Agents shall not have any duties or obligations except those expressly set forth herein. Neither any Agent nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. No Agent shall be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. 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, 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. 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 Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. Neither any Agent nor any of its directors, officers, employees or agents shall have any responsibility to the Borrower on account of the failure of or delay in performance or breach by any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or the Borrower of any of their respective obligations hereunder or in connection herewith. Each 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 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, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Borrower. Upon any such resignation of the Paying Agent, the Required Lenders shall have the right to appoint a successor Paying Agent acceptable to the Borrower. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Paying Agent gives notice of its resignation, then the retiring Paying Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Paying 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 ~~VIII, all references~~ 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 ~~Administrative~~ Loans made by it hereunder, any Agent ~~shall be deemed to be references to both the Administrative~~ in its individual capacity and not as an Agent ~~and the Collateral Agent. The bank serving as the Administrative Agent hereunder~~ shall have the same rights and powers ~~in its capacity as a Lender~~ as any other Lender and may exercise the same as though it were not ~~the Administrative~~ an Agent, and ~~such bank~~ each Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the ~~Administrative Agent~~ Paying Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder~~. The Administrative Agent~~ ) of any expenses incurred for the benefit of the Lenders 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 Borrower, and (ii) to indemnify and hold harmless each Agent and any ~~duties~~ of its directors, officers, employees or ~~obligations except those expressly set forth~~ agents, on demand, in the ~~Loan Documents. Without limiting~~ amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in 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 ~~generality of~~ extent the ~~foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent~~ same shall not have ~~any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated~~ been reimbursed by the ~~Loan Documents~~ Borrower; provided that ~~the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as~~ no Lender shall be ~~necessary under~~ liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the circumstances as provided in Section 2.05(j) and Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower gross negligence or ~~any~~ willful misconduct of ~~the Subsidiaries that is communicated to or obtained by the bank serving as Administrative~~ such Agent or any of its ~~Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken~~ directors, officers, employees or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more subagents appointed by the Administrative Agent. The Administrative Agent and any such subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such subagent and to the Related Parties of each Administrative Agent and any such subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agentagents. Each Lender acknowledges that it has, independently and without reliance upon ~~the Administrative~~ 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 Administrative~~ 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 or any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. ~~The~~ Each of the Borrower and its Subsidiaries and the Lenders ~~identified in~~ acknowledges that Merrill Lynch Capital Corporation and Citibank, N.A. have no respons▇▇▇▇▇▇▇e▇ ▇▇ obligations pursuant to this Agreement in their capacity as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties therebysyndication agents.

Appears in 1 contract

Sources: 364 Day Competitive Advance and Revolving Credit Facility Agreement (At&t Wireless Services Inc)

The Agents. Each of the Lenders ~~and the Issuing Bank~~ hereby irrevocably appoints ~~the Administrative Agent~~ Chase and Citibank as its agent hereunder and under the other Loan Documents and authorizes ~~the Administrative Agent~~ Chase and Citibank to take such actions on its behalf and to exercise such powers as are delegated to the Administrative ~~Agent~~ Agents by the terms ~~of the Loan Documents~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. ~~For purposes~~ Each of the Lenders hereby irrevocably appoints Citibank as its paying agent hereunder and under the other Loan Documents and authorizes Citibank to take such actions on its behalf and to exercise such powers as are delegated to the Paying Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. Each of the Lenders hereby irrevocably appoints Chase as its collateral agent hereunder and under the other Loan Documents and authorizes Chase to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The following provisions of this Article ~~VIII, all references~~ IX shall apply to the ~~Administrative Agent shall be deemed to be references to both the Administrative~~ Collateral Agent and the ~~Collateral Agent~~Paying Agent mutatis mutandis. The ~~bank~~ Persons serving as the Administrative ~~Agent~~ Agents hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative ~~Agent~~Agents, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative ~~Agent~~ Agents hereunder. The Administrative ~~Agent~~ Agents shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative ~~Agent~~ Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative ~~Agent~~ 76 -72- LOAN AGREEMENT Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative ~~Agent is~~ 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 2.05(j) and Section 9.02)~~Lenders, and (c) except as expressly set forth herein and in the other Loan Documents, the Administrative ~~Agent~~ Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as Administrative ~~Agent~~ Agents or any of its Affiliates in any capacity. The Administrative ~~Agent~~ Agents shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders ~~(or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02)~~ or in the absence of its own gross negligence or willful misconduct. The Administrative ~~Agent~~ Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative ~~Agent~~ Agents by ~~Holdings,~~ the Borrower or a Lender, and the Administrative ~~Agent~~ Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV V or elsewhere ~~in any Loan Document~~herein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent~~Agents. The Administrative ~~Agent~~ Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative ~~Agent~~ Agents also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative ~~Agent~~ Agents may consult with legal counsel (who may be counsel for an Obligor, Member or the ~~Borrower~~Sponsor), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative ~~Agent~~ Agents may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by the Administrative ~~Agent~~Agents. The Administrative ~~Agent~~ Agents and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of ~~each~~ the Administrative ~~Agent~~ Agents and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative ~~Agent~~Agents. ~~The~~ Each Administrative Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent's resignation shall nonetheless become effective and (1) the retiring LOAN AGREEMENT Administrative Agent ~~may, on behalf~~ shall be discharged from its duties and obligations hereunder and (2) the Required Lenders shall perform the duties of the Administrative Agent (and all payments and communications provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly) until such time as the Required Lenders ~~and the Issuing Bank,~~ appoint a successor ~~Administrative Agent which shall be a bank with an office~~ agent as provided for above in ~~New York, New York, or an Affiliate of any such bank~~this paragraph. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring (or retired) Administrative ~~Agent,~~ Agent and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder (if not already discharged therefrom as provided above in this paragraph). The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~9.03~~ 10.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring Administrative Agent, its subagents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. ~~The Lenders identified~~ Except as otherwise provided in Section 10.02(b) with respect to this ~~Agreement as a Syndication~~ Agreement, the Administrative Agent and the Collateral Agent may, with the prior consent of the Required Lenders (but not otherwise), consent to any modification, supplement or waiver under any of the Loan Documents to which it is a ~~Documentation~~ party; provided that, without the prior consent of each Lender, (a) the Collateral Agent shall not ~~have~~ (except as provided herein or in the Security Documents) release any ~~right~~collateral or otherwise terminate any Lien under any Security Document providing for collateral security, ~~power~~agree to additional obligations being secured by such collateral security (unless the Lien for such additional obligations shall be junior to the Lien in favor of the other obligations secured by such Security Document, ~~obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting~~ in which event the ~~foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative~~ Collateral Agent may ~~enter into~~ consent to such junior Lien provided that it obtains the ~~First Lien Intercreditor Agreement~~ consent of the Required Lenders thereto), alter the relative priorities of the obligations entitled to the benefits of the Liens created under the Security Documents, except that no such consent shall be required, and the ~~Second~~ Collateral Agent is hereby authorized, to release any Lien ~~Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by~~ covering property that is the ~~Borrower~~ subject of ~~Permitted Debt Securities and bind~~ either a disposition of property permitted hereunder or a disposition to which the ~~Secured Parties thereby~~Required Lenders have consented.

Appears in 1 contract

Sources: Loan Agreement (NRG Energy Inc)

The Agents. Each of the Lenders ~~and the Issuing Bank~~ hereby irrevocably appoints the ~~Administrative Agent~~ Agents as its ~~agent~~ agents and authorizes the ~~Administrative Agent~~ Agents to take such actions on its behalf and to exercise such powers as are delegated to the ~~Administrative Agent~~ Agents by the terms hereof and of the ~~Loan~~ other Credit Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent.~~ The bank or banks serving as the ~~Administrative Agent~~ Agents hereunder shall have the same rights and powers in ~~its~~ their capacity as ~~a Lender~~ Lenders as any other Lender and may exercise the same as though it they were not ~~the Administrative Agent~~Agents, and such bank or banks and ~~its~~ 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 it they were not ~~the Administrative Agent~~ Agents hereunder. The ~~Administrative Agent~~ Agents shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the ~~foregoing,~~ foregoing (a) the ~~Administrative Agent~~ Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the ~~Administrative Agent~~ 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~~ hereby that the ~~Administrative Agent is~~ 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 2.05(j) and Section 9.02)~~Majority Lenders, and (c) except as expressly set forth ~~in the Loan Documents~~herein, the ~~Administrative Agent~~ Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information communicated to the Agents by or relating to ~~Holdings,~~ the Borrower or any ~~of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity~~Subsidiary. The ~~Administrative Agent~~ Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the ~~Required~~ Majority Lenders (or ~~such other number or percentage of~~ the ~~Lenders~~ Lenders, as ~~shall be necessary under~~ the ~~circumstances as provided in Section 9.02)~~ case may be, or in the absence of ~~its~~ their own gross negligence or willful misconduct. ~~The Administrative Agent~~ In addition, the Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the ~~Administrative Agent~~ Agents by ~~Holdings,~~ the Borrower or a Lender, and the ~~Administrative Agent~~ Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any ~~Loan~~ Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein or therein, other than to confirm receipt of items expressly required to be delivered to the ~~Administrative Agent~~Agents. The ~~Administrative Agent~~ Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it them to be genuine and to have been signed or sent by the proper Person. The ~~Administrative Agent~~ Agents also may rely upon any statement made to it them orally or by telephone and believed by it them to be made by the proper Person, and shall not incur any liability for relying thereon. The ~~Administrative Agent~~ Agents may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by itthem with reasonable care, and shall not be liable for any action taken or not taken by it them in accordance with the advice of any such counsel, accountants or experts. The ~~Administrative Agent~~ Agents may perform any and all ~~its~~ their duties and exercise ~~its~~ their rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by the ~~Administrative Agent~~Agents. The ~~Administrative Agent~~ Agents and any such ~~subagent~~ sub-agent may perform any and all ~~its~~ their duties and exercise ~~its~~ their rights and powers through their respective ~~Related Parties~~Affiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such ~~subagent~~ sub-agent and to the ~~Related Parties~~ Affiliates of ~~each Administrative Agent~~ the Agents and any such ~~subagent~~sub-agent. Subject to the appointment and acceptance of a successor Agent as provided below, ~~and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative~~ either Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the Borrower. Upon receipt of any such ~~resignation~~notice of an Agent’s intent to resign, the ~~Required~~ Majority Lenders shall have the ~~right, in consultation~~ right to appoint a successor with the Borrower’s written consent (which shall not be unreasonably withheld or delayed and shall not be required from the Borrower if an Event of Default under clause (a), ~~to appoint a successor~~(b), (h) or (i) of Section 7.01 has occurred and is continuing). If no successor shall have been so appointed by the ~~Required~~ Majority Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its ~~resignation~~intent to resign, then the retiring ~~Administrative~~ Agent may, on behalf of the ~~Lenders~~ Lenders, with the Borrower’s written consent (which shall not be unreasonably withheld or delayed and ~~the Issuing Bank~~shall not be required if an Event of Default under clause (a), (b), (h) or (i) of Section 7.01 has occurred and is continuing), appoint a successor ~~Administrative~~ Agent which shall be a bank or an Affiliate thereof, in each case with a net worth of at least $1,000,000,000 and an office in New York, New York~~, or an Affiliate of any such bank~~. Upon the acceptance of its appointment as ~~Administrative~~ Agent hereunder and under the other Credit Documents by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations ~~hereunder. The fees payable by~~ hereunder and under the ~~Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor~~other Credit Documents. After ~~the Administrative~~ an Agent’s resignation ~~hereunder~~hereunder and under the other Credit Documents, the provisions of this Article and Section 9.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring Administrative Agent, its subagents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as ~~Administrative~~ Agent. Each Lender acknowledges that it has, independently and without reliance upon the ~~Administrative Agent~~ 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 ~~Administrative Agent~~ Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. ~~The Lenders identified in this Agreement~~ Notwithstanding any other provision contained herein, (a) each Lender acknowledges that the Administrative Agent is not acting as ~~a Syndication~~ an agent of the Borrower and that the Borrower will not be responsible for acts or failures to act on the part of the Administrative Agent and a (b) none of the Syndication Agents or Documentation ~~Agent shall not~~ Agents shall, in its capacity as such, have any ~~right~~responsibilities, ~~power~~fiduciary or otherwise, ~~obligation~~to the Borrower, ~~liability, responsibility~~ to any Lender or ~~duty~~ to any other Person under this Agreement or the other ~~than those~~ Credit Documents. Without prejudice to the provisions of this Article VIII, each Lender hereby irrevocably appoints and authorizes the Collateral Agent (and any successor acting as Collateral Agent) to act as the Person holding the power of attorney (in such capacity, the “fondé de pouvoir”) of the Lenders as contemplated under Article 2692 of the Civil Code of Quebec, and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties which are conferred upon the fondé de pouvoir under any hypothec. Moreover, without prejudice to such appointment and authorization to act as the Person holding the power of attorney as aforesaid, each Lender hereby irrevocably appoints and authorizes the Collateral Agent (and any successor acting as Collateral Agent) (in such capacity, the “Custodian”) to act as agent and custodian for and on behalf of the Lenders to hold and to be the sole registered holder of any debenture which may be issued under any hypothec, the whole notwithstanding Section 32 of the Act Respecting the Special Powers of Legal Persons (Quebec) or any other applicable law. In this respect, (i) the Custodian shall keep a record indicating the names and addresses of, and the pro rata portion of the obligations and indebtedness secured by any pledge of any such debenture and owing to each Lender and (ii) each Lender will be entitled to the benefits of any charged property covered by any hypothec and will participate in the proceeds of realization of any such charged property, the whole in accordance with the terms hereof. Each of the fondé de pouvoir and the Custodian shall (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to the fondé de pouvoir and the Custodian (as applicable) with respect to the charged property under any hypothec, any debenture or pledge thereof relating to any hypothec, applicable laws or otherwise, (b) benefit from and be subject to all provisions hereof with respect to the Collateral Agent mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the Lenders, and (c) be entitled to delegate from time to time any of its powers or duties under any hypothec, any debenture or pledge thereof relating to any hypothec, applicable laws or otherwise and on such terms and conditions as it may determine from time to time. ~~Without limiting the foregoing, no Syndication Agent nor any Documentation Agent~~ Any Person who becomes a Lender shall ~~have or~~ be deemed to have consented to and confirmed: (y) the fondé de pouvoir as the Person holding the power of attorney as aforesaid and to have ratified, as of the date it becomes a ~~fiduciary relationship with any~~ Lender, all actions taken by the fondé de pouvoir in such capacity, and (z) the Custodian as the agent and custodian as aforesaid and to have ratified, as of the date it becomes a Lender, all actions taken by the Custodian in such capacity. Each Lender ~~irrevocably agrees~~ represents and warrants, as of the date such Person became a Lender party hereto, to, and covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Agents and the Arrangers and their respective affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower, that at least one of the following is and will be true: (i) such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans or the Commitments, (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement, (iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement, or (iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender. In addition, unless the foregoing clause (i) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in clause (iv), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Agents and the Arrangers and their respective affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower, that: (i) none of the Agents or Arrangers or any of their respective affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by any Agent ~~may enter into~~ under this Agreement or any documents related hereto or thereto), (ii) the ~~First Lien Intercreditor~~ Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50,000,000, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E), (iii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies, (iv) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the ~~Second Lien Intercreditor agreement~~transactions hereunder, ~~without~~ and (v) no fee or other compensation is being paid directly to any ~~further consent from~~ Agent or Arranger or any ~~Secured Party~~of their respective affiliates for investment advice (as opposed to other services) in connection with the Loans, the Commitments or this Agreement. The Agents and the Arrangers hereby inform the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with ~~any incurrence~~ the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans or the Commitments for an amount less than the amount being paid for an interest in the Loans or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the ~~Borrower~~ transactions contemplated hereby or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of ~~Permitted Debt Securities and bind~~ credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the ~~Secured Parties thereby~~foregoing.

Appears in 1 contract

Sources: Second Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)

The Agents. Each of the Lenders ~~and the Issuing Bank~~ 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 ~~Administrative Agent~~ Agents to take such actions on its behalf and to exercise such powers as are delegated to the ~~Administrative Agent~~ Agents by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~For purposes~~ Each of ~~this Article VIII, all references to~~ the ~~Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The bank~~ banks serving as ~~the Administrative~~ an Agent hereunder shall have the same rights and powers in its respective capacity as a Lender or Applicable Issuing Party as any other Lender and may exercise the same as though it were not ~~the Administrative~~ an Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not ~~the Administrative~~ an Agent hereunder. The ~~Administrative Agent~~ Agents shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, (a) the ~~Administrative Agent~~ Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event or Default has occurred and is continuing, (b) the ~~Administrative Agent~~ 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~~ hereby that the ~~Administrative Agent is~~ 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 2.05(j) and Section 9.02)~~Lenders, and (c) except as expressly set forth ~~in the Loan Documents~~herein, the ~~Administrative Agent~~ Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the ~~bank~~ banks serving as ~~Administrative Agent~~ Agents or any of ~~its~~ their Affiliates in any capacity. The ~~Administrative Agent~~ Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the Required Lenders (or ~~such other number or percentage of~~ all the ~~Lenders~~ Lenders, as ~~shall be necessary under~~ the ~~circumstances as provided in Section 9.02)~~ case may be, or in the absence of ~~its~~ their own gross negligence or willful misconduct. The ~~Administrative Agent~~ 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 ~~Administrative Agent~~ Agents by ~~Holdings,~~ the Borrower or a Lender, and the ~~Administrative Agent~~ Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document~~this Agreement, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the ~~Administrative Agent~~relevant Agent or Agents. The ~~Administrative Agent~~ Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing reasonably believed by it them to be genuine and to have been signed or sent by the proper Person. The ~~Administrative Agent also~~ Agents may rely upon any statement made to it them orally or by telephone and reasonably believed by it them to be made by the proper Person, and shall not incur any liability for relying thereon. The ~~Administrative Agent~~ Agents may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by ~~it,~~ them and shall not be liable for any action taken or not taken by it them in accordance with the advice of any such counsel, accountants or experts. The ~~Administrative Agent~~ Agents may perform any and all ~~its~~ their duties and exercise ~~its~~ their rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by the ~~Administrative Agent~~Agents. The ~~Administrative Agent and~~ Agents or any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of ~~each Administrative Agent~~ the Agents and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as ~~Administrative Agent~~the Agents. ~~The Administrative~~ Subject to the appointment and acceptance of a successor Agent or Agents as provided in this paragraph, each of the Agents may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~in consultation~~ with the ~~Borrower~~written consent of the Borrower so long as no Event of Default exists, to appoint a ~~successor~~successor or 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 ~~Administrative~~ Agent or Agents gives notice of its or their resignation, then the retiring ~~Administrative~~ Agent or Agents may, on behalf of the ~~Lenders and the Issuing Bank~~Lenders, appoint a successor ~~Administrative~~ Agent or Agents, each of which shall be a bank with an office in New York, New ~~York,~~ 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 its appointment as ~~Administrative~~ an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its respective duties and obligations hereunder. The fees payable by the Borrower to a any successor ~~Administrative~~ Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After ~~the Administrative~~ any Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring Administrative Agent, its subagents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as ~~Administrative~~ an Agent. Each Lender acknowledges that it has, independently and without reliance upon ~~the Administrative~~ 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 Administrative~~ any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.

Appears in 1 contract

Sources: Five Year Credit Agreement (Genworth Financial Inc)

The Agents. Each of the Lenders ~~and the Issuing Bank~~ hereby irrevocably appoints the ~~Administrative Agent~~ Agents as its ~~agent~~ agents and authorizes the ~~Administrative Agent~~ Agents to take such actions on its behalf and to exercise such powers as are delegated to the ~~Administrative Agent~~ Agents by the terms hereof and of the ~~Loan~~ other Credit Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent.~~ The bank or banks serving as the ~~Administrative Agent~~ Agents hereunder shall have the same rights and powers in ~~its~~ their capacity as ~~a Lender~~ Lenders as any other Lender and may exercise the same as though it they were not ~~the Administrative Agent~~Agents, and such bank or banks and ~~its~~ 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 it they were not ~~the Administrative Agent~~ Agents hereunder. The ~~Administrative Agent~~ Agents shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the ~~foregoing,~~ foregoing (a) the ~~Administrative Agent~~ Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the ~~Administrative Agent~~ 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~~ hereby that the ~~Administrative Agent is~~ 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 2.05(j) and Section 9.02)~~Majority Lenders, and (c) except as expressly set forth ~~in the Loan Documents~~herein, the ~~Administrative Agent~~ Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information communicated to the Agents by or relating to ~~Holdings,~~ the Borrower or any ~~of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity~~Subsidiary. The ~~Administrative Agent~~ Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the ~~Required~~ Majority Lenders (or ~~such other number or percentage of~~ the ~~Lenders~~ Lenders, as ~~shall be necessary under~~ the ~~circumstances as provided in Section 9.02)~~ case may be, or in the absence of ~~its~~ their own gross negligence or ~~willful~~ wilful misconduct. ~~The Administrative Agent~~ In addition, the Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the ~~Administrative Agent~~ Agents by ~~Holdings,~~ the Borrower or a Lender, and the ~~Administrative Agent~~ Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document~~this Agreement, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV III or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the ~~Administrative Agent~~Agents. Each Tranche B Term Lender acknowledges that by virtue of the provisions of Section 7.02 or other provisions of this Agreement the interests of the Tranche B Term Lenders may conflict with those of the Tranche A Term Lenders and/or the Revolving Lenders, and agrees that the Agents may perform their duties under and exercise the authority conferred on them by the Credit Documents without liability to the Tranche B Term Lenders notwithstanding that as a result of such performance or exercise the Tranche B Term Lenders might be disadvantaged relative to the Tranche A Term Lenders and/or the Revolving Lenders. The ~~Administrative Agent~~ Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it them to be genuine and to have been signed or sent by the proper Person. The ~~Administrative Agent~~ Agents also may rely upon any statement made to it them orally or by telephone and believed by it them to be made by the proper Person, and shall not incur any liability for relying thereon. The ~~Administrative Agent~~ Agents may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by itthem with reasonable care, and shall not be liable for any action taken or not taken by it them in accordance with the advice of any such counsel, accountants or experts. The ~~Administrative Agent~~ Agents may perform any and all ~~its~~ their duties and exercise ~~its~~ their rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by the ~~Administrative Agent~~Agents. The ~~Administrative Agent~~ Agents and any such ~~subagent~~ sub-agent may perform any and all ~~its~~ their duties and exercise ~~its~~ their rights and powers through their respective ~~Related Parties~~Affiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such ~~subagent~~ sub-agent and to the ~~Related Parties~~ Affiliates of ~~each Administrative Agent~~ the Agents and any such ~~subagent~~sub-agent. Subject to the appointment and acceptance of a successor Agent as provided below, ~~and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative~~ either Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the Borrower. Upon any such resignation, the ~~Required~~ Majority Lenders shall have the ~~right, in consultation~~ right to appoint a successor with the Borrower~~, to appoint a successor~~'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~~ Majority Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent may, on behalf of the ~~Lenders~~ Lenders, with the Borrower's written consent (which shall not be unreasonably withheld or delayed and ~~the Issuing Bank~~shall not be required if an Event of Default has occurred and is continuing), appoint a successor ~~Administrative~~ Agent which shall be a bank or an Affiliate thereof, in each case with a net worth of at least $1,000,000,000 and an office in New York, New York~~, or an Affiliate of any such bank~~. Upon the acceptance of its appointment as ~~Administrative~~ Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.~~ After ~~the Administrative~~ an Agent’s 's resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring Administrative Agent, its subagents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as ~~Administrative~~ Agent. Each Lender acknowledges that it has, independently and without reliance upon the ~~Administrative Agent~~ 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 ~~Administrative Agent~~ Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. ~~The Lenders identified in this Agreement~~ Notwithstanding any other provision contained herein, (a) each Lender acknowledges that the Administrative Agent is not acting as ~~a Syndication~~ an agent of the Borrower and that the Borrower will not be responsible for acts or failures to act on the part of the Administrative Agent and ~~a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting~~ (b) neither the ~~foregoing, no~~ Syndication Agent nor any of the Documentation Agents shall, in its capacity as such, have any responsibilities under this Agreement or the other Credit Documents. Without prejudice to the provisions of this Article VIII, each Lender hereby irrevocably appoints and authorizes the Collateral Agent (and any successor acting as Collateral Agent) to act as the person holding the power of attorney (in such capacity, the "fonde de pouvoir") of the Lenders as contemplated under Article 2692 of the Civil Code of Quebec, and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties which are conferred upon the fonde de pouvoir under any hypothec. Moreover, without prejudice to such appointment and authorization to act as the person holding the power of attorney as aforesaid, each Lender hereby irrevocably appoints and authorizes the Collateral Agent (and any successor acting as Collateral Agent) (in such capacity, the "Custodian") to act as agent and custodian for and on behalf of the Lenders to hold and to be the sole registered holder of any debenture which may be issued under any hypothec, the whole notwithstanding Section 32 of the Act Respecting the Special Powers of Legal Persons (Quebec) or any other applicable law. In this respect, (i) the Custodian shall keep a record indicating the names and addresses of, and the pro rata portion of the obligations and indebtedness secured by any pledge of any such debenture and owing to each Lender, and (ii) each Lender will be entitled to the benefits of any charged property covered by any hypothec and will participate in the proceeds of realization of any such charged property, the whole in accordance with the terms hereof. Each of the fonde de pouvoir and the Custodian shall (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to fonde de pouvoir and the Custodian (as applicable) with respect to the charged property under any hypothec, any debenture or pledge thereof relating to any hypothec, applicable laws or otherwise, (b) benefit from and be subject to all provisions hereof with respect to the Collateral Agent mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the Lenders, and (c) be entitled to delegate from time to time any of its powers or duties under any hypothec, any debenture or pledge thereof relating to any hypothec, applicable laws or otherwise and on such terms and conditions as it may determine from time to time. Any person who becomes a Lender shall be deemed to have consented to and confirmed: (y) the fonde de pouvoir as the person holding the power of attorney as aforesaid and to have ratified, as of the date it becomes a ~~fiduciary relationship with any~~ Lender~~. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement~~, ~~without any further consent from any Secured Party, in connection with any incurrence~~ all actions taken by the ~~Borrower~~ fonde de pouvoir in such capacity, (z) the Custodian as the agent and custodian as aforesaid and to have ratified, as of ~~Permitted Debt Securities and bind~~ the ~~Secured Parties thereby~~date it becomes a Lender, all actions taken by the Custodian in such capacity.

Appears in 1 contract

Sources: Term Loan and Revolving Credit Agreement (Goodyear Tire & Rubber Co /Oh/)

The Agents. Each of the Lenders and ~~the~~ Issuing ~~Bank~~ Banks hereby irrevocably appoints the ~~Administrative Agent~~ Agents as its ~~agent~~ agents and authorizes the ~~Administrative Agent~~ Agents to take such actions on its behalf and to exercise such powers as are delegated to the ~~Administrative Agent~~ Agents by the terms hereof and of the ~~Loan~~ other Credit Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent.~~ The bank or banks serving as the ~~Administrative Agent~~ Agents hereunder shall have the same rights and powers in ~~its~~ their capacity as ~~a Lender~~ Lenders or Issuing Banks as any other Lender or Issuing Bank and may exercise the same as though it they were not ~~the Administrative Agent~~Agents, and such bank or banks and ~~its~~ 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 it they were not ~~the Administrative Agent~~ Agents hereunder. The ~~Administrative Agent~~ Agents shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the ~~foregoing,~~ foregoing (a) the ~~Administrative Agent~~ Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the ~~Administrative Agent~~ 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~~ hereby that the ~~Administrative Agent is~~ 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 2.05(j) and Section 9.02)~~Majority Lenders, and (c) except as expressly set forth ~~in the Loan Documents~~herein, the ~~Administrative Agent~~ Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information communicated to the Agents by or relating to ~~Holdings,~~ the Borrower or any ~~of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity~~Subsidiary. The ~~Administrative Agent~~ Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the ~~Required~~ Majority Lenders (or ~~such other number or percentage of~~ the ~~Lenders~~ Lenders, as ~~shall be necessary under~~ the ~~circumstances as provided in Section 9.02)~~ case may be, or in the absence of ~~its~~ their own gross negligence or ~~willful~~ wilful misconduct. ~~The Administrative Agent~~ In addition, the Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the ~~Administrative Agent~~ Agents by ~~Holdings,~~ the Borrower or a ~~Lender~~Lender or Issuing Bank, and the ~~Administrative Agent~~ Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any ~~Loan~~ Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or ~~document,~~ document or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein or therein, other than to confirm receipt of items expressly required to be delivered to the ~~Administrative Agent~~Agents. The ~~Administrative Agent~~ Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it them to be genuine and to have been signed or sent by the proper Person. The ~~Administrative Agent~~ Agents also may rely upon any statement made to it them orally or by telephone and believed by it them to be made by the proper Person, and shall not incur any liability for relying thereon. The ~~Administrative Agent~~ Agents may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by itthem with reasonable care, and shall not be liable for any action taken or not taken by it them in accordance with the advice of any such counsel, accountants or experts. The ~~Administrative Agent~~ Agents may perform any and all ~~its~~ their duties and exercise ~~its~~ their rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by the ~~Administrative Agent~~Agents. The ~~Administrative Agent~~ Agents and any such ~~subagent~~ sub-agent may perform any and all ~~its~~ their duties and exercise ~~its~~ their rights and powers through their respective ~~Related Parties~~Affiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such ~~subagent~~ sub-agent and to the ~~Related Parties~~ Affiliates of ~~each Administrative Agent~~ the Agents and any such ~~subagent~~sub-agent. Subject to the appointment and acceptance of a successor Agent as provided below, ~~and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative~~ either Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the Borrower. Upon any such resignation, the ~~Required~~ Majority Lenders shall have the ~~right, in consultation~~ right to appoint a successor with the Borrower~~, to appoint a successor~~'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~~ Majority Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent may, on behalf of the ~~Lenders~~ Lenders, with the Borrower's written consent (which shall not be unreasonably withheld or delayed and ~~the Issuing Bank~~shall not be required if an Event of Default has occurred and is continuing), appoint a successor ~~Administrative~~ Agent which shall be a bank or an Affiliate thereof, in each case with a net worth of at least $1,000,000,000 and an office in New York, New York~~, or an Affiliate of any such bank~~. Upon the acceptance of its appointment as ~~Administrative~~ Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.~~ After ~~the Administrative~~ an Agent’s 's resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring Administrative Agent, its subagents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as ~~Administrative~~ Agent. Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon the ~~Administrative Agent~~ Agents or any other Lender or Issuing Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon the ~~Administrative Agent~~ Agents or any other Lender or Issuing Bank and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. ~~The Lenders identified in this Agreement~~ Notwithstanding any other provision contained herein, (a) each Lender and each Issuing Bank acknowledges that the Administrative Agent is not acting as ~~a Syndication~~ an agent of the Borrower and that the Borrower will not be responsible for acts or failures to act on the part of the Administrative Agent and ~~a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting~~ (b) neither the ~~foregoing, no~~ Syndication Agent nor any of the Documentation Agents shall, in its capacity as such, have any responsibilities under this Agreement or the other Credit Documents. Without prejudice to the provisions of this Article VIII, each Lender and Issuing Bank hereby irrevocably appoints and authorizes the Collateral Agent (and any successor acting as Collateral Agent) to act as the Person holding the power of attorney (in such capacity, the "fonde de pouvoir") of the Lenders and Issuing Banks as contemplated under Article 2692 of the Civil Code of Quebec, and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties which are conferred upon the fonde de pouvoir under any hypothec. Moreover, without prejudice to such appointment and authorization to act as the Person holding the power of attorney as aforesaid, each Lender and Issuing Bank hereby irrevocably appoints and authorizes the Collateral Agent (and any successor acting as Collateral Agent) (in such capacity, the "Custodian") to act as agent and custodian for and on behalf of the Lenders and Issuing Banks to hold and to be the sole registered holder of any debenture which may be issued under any hypothec, the whole notwithstanding Section 32 of the Act Respecting the Special Powers of Legal Persons (Quebec) or any other applicable law. In this respect, (i) the Custodian shall keep a record indicating the names and addresses of, and the pro rata portion of the obligations and indebtedness secured by any pledge of any such debenture and owing to each Lender and Issuing Bank and (ii) each Lender and Issuing Bank will be entitled to the benefits of any charged property covered by any hypothec and will participate in the proceeds of realization of any such charged property, the whole in accordance with the terms hereof. Each of the fonde de pouvoir and the Custodian shall (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to fonde de pouvoir and the Custodian (as applicable) with respect to the charged property under any hypothec, any debenture or pledge thereof relating to any hypothec, applicable laws or otherwise, (b) benefit from and be subject to all provisions hereof with respect to the Collateral Agent mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the Lenders or the Issuing Banks, and (c) be entitled to delegate from time to time any of its powers or duties under any hypothec, any debenture or pledge thereof relating to any hypothec, applicable laws or otherwise and on such terms and conditions as it may determine from time to time. Any Person who becomes a Lender or an Issuing Bank shall be deemed to have consented to and confirmed: (y) the fonde de pouvoir as the Person holding the power of attorney as aforesaid and to have ratified, as of the date it becomes a ~~fiduciary relationship with any Lender. Each~~ Lender ~~irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement~~or Issuing Bank, ~~without any further consent from any Secured Party, in connection with any incurrence~~ all actions taken by the ~~Borrower~~ fonde de pouvoir in such capacity, (z) the Custodian as the agent and custodian as aforesaid and to have ratified, as of ~~Permitted Debt Securities and bind~~ the ~~Secured Parties thereby~~date it becomes a Lender or Issuing Bank, all actions taken by the Custodian in such capacity.

Appears in 1 contract

Sources: First Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)

The Agents. Each of the Lenders ~~and the Issuing Bank~~ hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of ~~the~~ this Agreement or any other Loan ~~Documents~~Document, together with such actions and powers as are reasonably incidental thereto~~. For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent~~. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that the Administrative Agent is required to exercise in writing 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 ~~2.05(j) and Section~~ 9.02), and (c) except as expressly set forth ~~in the Loan Documents~~herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~Holdings,~~ the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other ~~agreement, instrument or document~~Loan Document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by the Administrative Agent. The Administrative Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of ~~each~~ the Administrative Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. ~~The~~ Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~in consultation~~ with (if no Default then exists) the ~~Borrower~~consent of the Borrower (not to be unreasonably withheld, delayed or conditioned), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and~~ Lenders, with the ~~Issuing Bank~~consent of the Borrower (not to be unreasonably withheld, delayed or conditioned) if no Default then exists, appoint a successor Administrative ~~Agent~~ Agent, 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article VIII and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan ~~Document or~~ Document, any related agreement or any document furnished hereunder or thereunder. ~~The Lenders identified in~~ Notwithstanding any other provision of this Agreement, each of the financial institutions named as “Syndication Agent,” “Joint Bookrunner” and “Joint Lead Arranger” on the cover page of this Agreement is named as ~~a Syndication~~ such for recognition purposes only, and in its capacity as such shall have no powers, duties, responsibilities or liabilities with respect to this Agreement or the transactions contemplated hereby; it being understood and agreed that each such financial institution in its stated capacity shall be entitled to all indemnification and reimbursement rights in favor of the Administrative Agent as, and ~~a Documentation Agent shall not have any right~~to the extent, ~~power, obligation, liability, responsibility or duty~~ provided for under this ~~Agreement other than those applicable to all Lenders~~Article VIII and Section 9.03. Without ~~limiting~~ limitation of the foregoing, no ~~Syndication Agent nor~~ such financial institution shall, solely by reason of this Agreement or any ~~Documentation Agent shall~~ other Loan Document, have ~~or be deemed to have a~~ any fiduciary relationship ~~with~~ in respect of any ~~Lender. Each~~ Lender ~~irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without~~ or any ~~further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby~~other Person.

Appears in 1 contract

Sources: Bridge Credit Agreement (Reynolds American Inc)

The Agents. Each of the Lenders and the Issuing ~~Bank~~ Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~For purposes~~ Each of ~~this Article VIII, all references~~ the Canadian Lenders hereby irrevocably appoints the Canadian Agent as its agent and authorizes the Canadian Agent to take such actions on its behalf and to exercise such powers as are delegated to the ~~Administrative~~ Canadian Agent ~~shall be deemed~~ by the terms hereof, together with such actions and powers as are reasonably incidental thereto. Each of the UK Lenders hereby irrevocably appoints the UK Agent as its agent and authorizes the UK Agent to ~~be references~~ take such actions on its behalf and to ~~both~~ exercise such powers as are delegated to the ~~Administrative~~ UK Agent by the terms hereof, together with such actions and ~~the Collateral Agent~~powers as are reasonably incidental thereto. ~~The~~ Each bank serving as ~~the Administrative~~ 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 ~~the Administrative~~ such Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if it were not ~~the Administrative~~ an Agent hereunder. The ~~Administrative Agent~~ 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) ~~the Administrative~~ no Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative~~ no Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that ~~the Administrative~~ such Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~2.05(j) and Section 9.02~~11.02), and (c) except as expressly set forth in the Loan Documents, ~~the Administrative~~ no Agent shall ~~not~~ have any duty to disclose, ~~and~~ or shall ~~not~~ be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower~~ Company or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as ~~Administrative~~ such Agent or any of its Affiliates in any capacity. ~~The Administrative~~ No Agent shall ~~not~~ be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~11.02) or in the absence of its own gross negligence or willful misconduct. ~~The Administrative~~ No Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~Holdings, the~~ a Borrower or a Lender, and ~~the Administrative~~ no Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral or (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to ~~the Administrative~~ such Agent. ~~The Administrative~~ 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. ~~The Administrative~~ 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. ~~The Administrative~~ Each Agent may consult with legal counsel (who may be counsel for ~~the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The Administrative~~ Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by ~~the Administrative~~ such Agent. ~~The Administrative~~ Each Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of each ~~Administrative~~ Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as ~~Administrative~~ an Agent. ~~The Administrative~~ 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 ~~Bank~~ Banks (in the case of the Administrative Agent) and the ~~Borrower~~Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~Borrower~~Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent may, on behalf of the Lenders and the Issuing ~~Bank~~Banks (in the case of a successor Administrative Agent) and in consultation with the Company, appoint a successor Agent, which, in the case of the Administrative Agent ~~which~~ shall be a bank with an office in New York, New York, or an Affiliate of any such bank; in the case of the Canadian Agent, shall be a bank with an office in Toronto, Canada, or an Affiliate of any such bank; and in the case of the UK Agent, shall be a bank with an office in London, England, or an Affiliate of any such bank. The appointment of a successor Canadian Agent or UK Agent shall be subject to the consent of the Administrative Agent (such consent not to be unreasonably withheld). Upon the acceptance of its appointment as ~~Administrative~~ an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~the~~ any Borrower to a successor ~~Administrative~~ Agent shall be the same as those payable to its predecessor unless otherwise agreed between ~~the~~ such Borrower and such successor. After ~~the Administrative~~ an Agent’s resignation hereunder, the provisions of this Article and Section ~~9.03~~ 11.03 shall continue in effect for the benefit of such retiring ~~Administrative~~ Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as ~~Administrative~~ an Agent. Each Lender acknowledges that it has, independently and without reliance upon ~~the Administrative~~ any Agent, any Arranger, any Bookrunner, any Syndication Agent, any Documentation Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon ~~the Administrative~~ any Agent, any Arranger, any Bookrunner, any Syndication Agent, any Documentation Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. ~~The Lenders~~ None of the Arrangers, the Bookrunners or any Syndication Agent or Documentation Agent, if any, identified as such in this ~~Agreement as a Syndication Agent and a Documentation Agent~~ Agreement, shall ~~not~~ have any right, power, obligation, liability, responsibility or duty under this ~~Agreement other than those applicable to all Lenders~~Agreement, except in its capacity, as applicable, as Administrative Agent, Canadian Agent, UK Agent, a Lender or an Issuing Bank hereunder. Without limiting the foregoing, no none of the Arrangers, the Bookrunners or the Syndication ~~Agent nor any~~ Agents or Documentation ~~Agent~~ Agents, if any, shall have or be deemed to have a fiduciary relationship with any Lender. Except with respect to the exercise of setoff rights of any Lender, in accordance with Section 11.08, the proceeds of which are applied in accordance with this Agreement, each Lender agrees that it will not take any action, nor institute any actions or proceedings, against any Borrower or with respect to any Loan Document, without the prior written consent of the Required Lenders or, as may be provided in this Agreement or the other Loan Documents, with the consent of the Administrative Agent. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement. In its capacity, the Administrative Agent is a “representative” of the Holders of Secured Obligations within the meaning of the term “secured party” as defined in the UCC. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Holder of Secured Obligations (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Holders of Secured Obligations upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Holders of Secured Obligations any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of or for the benefit of the Administrative Agent, on behalf of the Holders of Secured Obligations. The Lenders hereby authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral (i) as described in Section 11.15(b), (ii) as permitted by, but only in accordance with, the terms of the applicable Loan Document; or (iii) if approved, authorized or ratified in writing by the Required Lenders, unless such release is required to be approved by all of the Lenders hereunder. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release particular types or items of Collateral pursuant hereto. Upon any sale or transfer of assets constituting Collateral which is permitted pursuant to the terms of any Loan Document, or consented to in writing by the Required Lenders or all of the Lenders, as applicable, and upon at least five (5) Business Days’ prior written request by the Company to the Administrative Agent, the Administrative Agent shall (and is hereby irrevocably ~~agrees~~ authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for the benefit of the Holders of Secured Obligations herein or pursuant hereto upon the Collateral that was sold or transferred; provided, however, that (i) the Administrative Agent shall not be required to execute any such document on terms which, in the Administrative Agent’s opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Secured Obligations or any Liens upon (or obligations of the Company or any Subsidiary in respect of) all interests retained by the Company or any Subsidiary, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the Collateral. Each Borrower, on its behalf and on behalf of its Subsidiaries, and each Lender, on its behalf and on the behalf of its affiliated Holders of Secured Obligations, hereby irrevocably constitute the Administrative Agent as the holder of an irrevocable power of attorney (fondé de pouvoir within the meaning of Article 2692 of the Civil Code of Québec) in order to hold hypothecs and security granted by each Borrower or any Subsidiary on property pursuant to the laws of the Province of Quebec to secure obligations of any Borrower or any Subsidiary under any bond, debenture or similar title of indebtedness issued by any Borrower or any Subsidiary in connection with this Agreement, and agree that the Administrative Agent may ~~enter into~~ act as the ~~First Lien Intercreditor~~ bondholder and mandatary with respect to any bond, debenture or similar title of indebtedness that may be issued by any Borrower or any Subsidiary and pledged in favor of the Holders of Secured Obligations in connection with this Agreement. Notwithstanding the provisions of Section 32 of the An Act respecting the special powers of legal persons (Quebec), JPMorgan Chase Bank, N.A. as Administrative Agent may acquire and be the holder of any bond issued by any Borrower or any Subsidiary in connection with this Agreement (i.e., the fondé de pouvoir may acquire and hold the first bond issued under any deed of hypothec by any Borrower or any Subsidiary). The Administrative Agent is hereby authorized to execute and deliver any documents necessary or appropriate to create and perfect the rights of pledge for the benefit of the Holders of Secured Obligations including a right of pledge with respect to the entitlements to profits, the balance left after winding up and the voting rights of the Company as ultimate parent of any subsidiary of the Company which is organized under the laws of the Netherlands and the Equity Interests of which are pledged in connection herewith (a “Dutch Pledge”). Without prejudice to the provisions of this Agreement and the ~~Second Lien Intercreditor agreement~~other Loan Documents, ~~without~~ the parties hereto acknowledge and agree with the creation of parallel debt obligations of the Company or any ~~further consent from~~ relevant Subsidiary as will be described in any Dutch Pledge (the “Parallel Debt”), including that any payment received by the Administrative Agent in respect of the Parallel Debt will conditionally upon such payment not subsequently being avoided or reduced by virtue of any provisions or enactments relating to bankruptcy, insolvency, preference, liquidation or similar laws of general application be deemed a satisfaction of a pro rata portion of the corresponding amounts of the Secured ~~Party~~Obligations, and any payment to the Holders of Secured Obligations in satisfaction of the Secured Obligations shall conditionally upon such payment not subsequently being avoided or reduced by virtue of any provisions or enactments relating to bankruptcy, insolvency, preference, liquidation or similar laws of general application be deemed as satisfaction of the corresponding amount of the Parallel Debt. The parties hereto acknowledge and agree that, for purposes of a Dutch Pledge, any resignation by the Administrative Agent is not effective until its rights under the Parallel Debt are assigned to the successor Administrative Agent. Each Lender, on its behalf and on the behalf of its affiliated Holders of Secured Obligations, hereby authorizes the Administrative Agent, in connection with ~~any incurrence by~~ the ~~Borrower~~ Company’s request for withdrawal of ~~Permitted Debt Securities~~ funds from the Escrow Account, to give written notice to the Escrow Agent under (and ~~bind~~ as defined in) the ~~Secured Parties thereby.~~Escrow Account Agreement that the Escrow Release Condit

Appears in 1 contract

Sources: Credit Agreement (Yrc Worldwide Inc)

The Agents. Each of the Lenders ~~and the Issuing Bank~~ 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 ~~Administrative Agent~~ Agents to take such actions on its behalf and to exercise such powers as are delegated to ~~the Administrative~~ such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes~~ 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 ~~Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent~~ Agreement and the Collateral ~~Agent~~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 ~~the Administrative~~ an Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Borrower or~~ any ~~Subsidiary~~ Credit Party or other Affiliate thereof as if it were not ~~the Administrative~~ an Agent hereunder. ~~The Administrative~~ Neither Agent shall ~~not~~ have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) ~~the Administrative~~ neither Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative~~ neither Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that ~~the Administrative~~ such Agent is ~~required~~ instructed in writing 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 ~~2.05(j) and Section 9.02~~9.08), and (c) except as expressly set forth in the Loan Documents, ~~the Administrative~~ neither Agent shall ~~not~~ have any duty to disclose, ~~and~~ nor shall ~~not~~ it be liable for the failure to disclose, any information relating to ~~Holdings, the Borrower or any of the Subsidiaries~~ Credit Party that is communicated to or obtained by the bank serving as Administrative Agent and/or Collateral Agent or any of its Affiliates in any capacity. ~~The Administrative~~ Neither Agent shall ~~not~~ be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~9.08) or in the absence of its own gross negligence or willful misconduct. ~~The Administrative~~ Neither Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~Holdings, the Borrower~~ a Credit Party or a Lender, and ~~the Administrative~~ neither Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to ~~the Administrative~~ such Agent. ~~The Administrative~~ 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~~person. ~~The Administrative~~ Each Agent may also ~~may~~ rely upon any statement made to it orally or by telephone and believed by it to be have been made by the proper ~~Person~~person, and shall not incur any liability for relying thereon. ~~The Administrative~~ Each Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The Administrative~~ Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by ~~the Administrative Agent~~it. ~~The Administrative~~ Each Agent and any such ~~subagent~~ sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such ~~subagent~~ sub-agent and to the Related Parties of each ~~Administrative~~ Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as ~~Administrative~~ Agent. ~~The Administrative~~ Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders, the Issuing Bank and the ~~Borrower~~Borrowers. Upon any such resignation, the Required Lenders shall have the right, ~~in consultation with~~ subject, if no Event of Default shall have occurred and be continuing, to the ~~Borrower~~consent of the Borrowers (not to be unreasonably withheld), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent may, 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 Lenders and the Issuing Bank, appoint a successor ~~Administrative~~ Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Borrowers to a successor ~~Administrative~~ Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Borrowers and such successor. After ~~the Administrative~~ an Agent’s resignation hereunder, the provisions of this Article and Section ~~9.03~~ 9.05 shall continue in effect for the benefit of such retiring ~~Administrative~~ Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while ~~it was~~ acting as ~~Administrative~~ Agent. Each Lender acknowledges that it has, independently and without reliance upon the ~~Administrative Agent~~ 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 ~~Administrative Agent~~ 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 or any other Loan ~~Document or~~ Document, any related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.

Appears in 1 contract

Sources: Second Lien Credit Agreement (Thermadyne Holdings Corp /De)

The Agents. ~~Each~~ As used in this Section 10, the term “Agents” or “Agent” shall mean each of the ~~Lenders~~ Agents as well as the Administrative Agent, acting in such respective capacities. The rights and relationships of each Agent and the ~~Issuing Bank hereby irrevocably appoints~~ Banks shall be subject to the provisions set forth in this Section 10. The Administrative Agent ~~as its agent and authorizes the Administrative Agent~~ is authorized to take such ~~actions~~ action on ~~its~~ behalf of each of the Banks and to exercise all such powers as are hereunder and in related documents delegated to the Administrative ~~Agent by the terms of the Loan Documents~~Agent, together with such ~~actions and~~ powers as are reasonably ~~incidental~~ incident thereto~~. For purposes of this Article VIII~~, ~~all references~~ provided that no duties or responsibilities not expressly assumed herein or therein shall be implied to have been assumed by the Administrative ~~Agent shall be deemed to be references to both~~ Agent. The relationship between the Administrative Agent and each of the ~~Collateral Agent~~Banks is that of an independent contractor. The ~~bank serving~~ 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 this Agreement shall be construed to create an agency, trust or other fiduciary relationship between the Administrative Agent and any of the Banks. The Administrative Agent may exercise its 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 ~~hereunder shall have the same rights and powers~~ in its ~~capacity as a Lender as~~ 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 ~~Lender and may exercise the same as though it were not the Administrative Agent~~Person assisting them in their duties nor any agent or employee thereof, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing 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 2.05(j) and Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any waiver, consent or approval given or any action ~~taken~~ taken, or ~~not taken~~ omitted to be taken, in good faith by it ~~with~~ or them hereunder, or in connection herewith, or be responsible for the ~~consent~~ consequences of any oversight or ~~at the request~~ error of ~~the Required Lenders (~~judgment whatsoever, except that each Agent or such other ~~number~~ Person, as the case may be, may be liable for losses due to its willful misconduct or ~~percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own~~ gross ~~negligence or willful misconduct~~negligence. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower or a Lender, and the Administrative Agent Agents shall not be responsible for the execution or ~~have~~ validity or enforceability of this Agreement or any ~~duty~~ 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 into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) as to the performance or observance of any of the ~~covenants~~terms, conditions, covenants or agreements herein or ~~other terms or conditions set forth~~ in any ~~Loan Document~~instrument at any time constituting, ~~(iv)~~ or intended to constitute, collateral security for the ~~validity~~Obligations. No Agent shall be bound to ascertain whether any notice, ~~enforceability~~consent, ~~effectiveness~~ waiver or ~~genuineness of any Loan Document~~ 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 Subsidiaries. Except for notices, reports and other ~~agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items~~ documents and information expressly required to be ~~delivered~~ furnished to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more subagents appointed Banks by the Administrative ~~Agent. The Administrative~~ Agent and any such subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such subagent and to the Related Parties of each Administrative hereunder, no Agent and any such subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have any duty or responsibility to provide any Bank with any credit or other information concerning any Person which may come into the ~~right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted~~ possession of such ~~appointment within 30 days after the retiring Administrative~~ Agent ~~gives notice~~ or any of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agentaffiliates. Each ~~Lender~~ Bank acknowledges that it has, independently and without reliance upon ~~the Administrative~~ 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 it will, independently and without reliance upon~~ If in the opinion of the Administrative Agent or the distribution of any ~~other Lender and based on~~ amount received in its capacity as Administrative Agent hereunder might involve it in a violation of law, 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 or based upon this Agreement~~been reimbursed by the Borrower as required by Section 11 hereof), ~~any other Loan Document~~ and liabilities of every nature and character arising out of or related ~~agreement or any document furnished hereunder or thereunder. The Lenders identified in~~ 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 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 ~~a Syndication Agent and a Documentation~~ 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 right, power, obligation, liability, responsibility or duty under this Agreement in such capacity, other than those applicable to all ~~Lenders~~Banks as Banks. Without limiting any of the ~~foregoing~~foregoing provisions of this Section 10, ~~no Syndication~~ the Banks and each Agent ~~nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees~~ hereby agree that the Administrative Agent ~~may enter into~~ shall not be obliged to make available to any Person any sum which the ~~First Lien Intercreditor Agreement~~ 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 ~~Second Lien Intercreditor agreement~~Administrative Agent, ~~without~~ 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 ~~further consent~~ Person to whom the Administrative Agent made the funds available shall, on demand from ~~any Secured Party, in connection with any incurrence by~~ the ~~Borrower of Permitted Debt Securities and bind the Secured Parties thereby.~~Administrative Agent:

Appears in 1 contract

Sources: Revolving Credit Agreement (Boston Edison Co)

The Agents. Each of the Lenders and ~~the~~ Issuing ~~Bank~~ Banks hereby irrevocably appoints the ~~Administrative Agent~~ Agents as its ~~agent~~ agents and authorizes the ~~Administrative Agent~~ Agents to take such actions on its behalf and to exercise such powers as are delegated to the ~~Administrative Agent~~ Agents by the terms hereof and of the ~~Loan~~ other Credit Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent.~~ The bank or banks serving as the ~~Administrative Agent~~ Agents hereunder shall have the same rights and powers in ~~its~~ their capacity as ~~a Lender~~ Lenders or Issuing Banks as any other Lender or Issuing Bank and may exercise the same as though it they were not ~~the Administrative Agent~~Agents, and such bank or banks and ~~its~~ 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 it they were not ~~the Administrative Agent~~ Agents hereunder. The ~~Administrative Agent~~ Agents shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the ~~foregoing,~~ foregoing (a) the ~~Administrative Agent~~ Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the ~~Administrative Agent~~ 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~~ hereby that the ~~Administrative Agent is~~ 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 2.05(j) and Section 9.02)~~Majority Lenders, and (c) except as expressly set forth ~~in the Loan Documents~~herein, the ~~Administrative Agent~~ Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information communicated to the Agents by or relating to ~~Holdings,~~ the Borrower or any ~~of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity~~Subsidiary. The ~~Administrative Agent~~ Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the ~~Required~~ Majority Lenders (or ~~such other number or percentage of~~ the ~~Lenders~~ Lenders, as ~~shall be necessary under~~ the ~~circumstances as provided in Section 9.02)~~ case may be, or in the absence of ~~its~~ their own gross negligence or ~~willful~~ wilful misconduct. ~~The Administrative Agent~~ In addition, the Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the ~~Administrative Agent~~ Agents by ~~Holdings,~~ the Borrower or a ~~Lender~~Lender or Issuing Bank, and the ~~Administrative Agent~~ Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any ~~Loan~~ Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein or therein, other than to confirm receipt of items expressly required to be delivered to the ~~Administrative Agent~~Agents. The ~~Administrative Agent~~ Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it them to be genuine and to have been signed or sent by the proper Person. The ~~Administrative Agent~~ Agents also may rely upon any statement made to it them orally or by telephone and believed by it them to be made by the proper Person, and shall not incur any liability for relying thereon. The ~~Administrative Agent~~ Agents may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by itthem with reasonable care, and shall not be liable for any action taken or not taken by it them in accordance with the advice of any such counsel, accountants or experts. The ~~Administrative Agent~~ Agents may perform any and all ~~its~~ their duties and exercise ~~its~~ their rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by the ~~Administrative Agent~~Agents. The ~~Administrative Agent~~ Agents and any such ~~subagent~~ sub-agent may perform any and all ~~its~~ their duties and exercise ~~its~~ their rights and powers through their respective ~~Related Parties~~Affiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such ~~subagent~~ sub-agent and to the ~~Related Parties~~ Affiliates of ~~each Administrative Agent~~ the Agents and any such ~~subagent~~sub-agent. Subject to the appointment and acceptance of a successor Agent as provided below, ~~and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative~~ either Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the Borrower. Upon any such resignation, the ~~Required~~ Majority Lenders shall have the ~~right, in consultation~~ right to appoint a successor with the Borrower~~, to appoint a successor~~’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~~ Majority Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent may, on behalf of the ~~Lenders~~ Lenders, with the Borrower’s written consent (which shall not be unreasonably withheld or delayed and ~~the Issuing Bank~~shall not be required if an Event of Default has occurred and is continuing), appoint a successor ~~Administrative~~ Agent which shall be a bank or an Affiliate thereof, in each case with a net worth of at least $1,000,000,000 and an office in New York, New York~~, or an Affiliate of any such bank~~. Upon the acceptance of its appointment as ~~Administrative~~ Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.~~ After ~~the Administrative~~ an Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring Administrative Agent, its subagents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as ~~Administrative~~ Agent. Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon the ~~Administrative Agent~~ Agents or any other Lender or Issuing Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon the ~~Administrative Agent~~ Agents or any other Lender or Issuing Bank and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. ~~The Lenders identified in this Agreement~~ Notwithstanding any other provision contained herein, (a) each Lender and each Issuing Bank acknowledges that the Administrative Agent is not acting as ~~a Syndication~~ an agent of the Borrower and that the Borrower will not be responsible for acts or failures to act on the part of the Administrative Agent and ~~a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting~~ (b) neither the ~~foregoing, no~~ Syndication Agent nor any of the Documentation Agents shall, in its capacity as such, have any responsibilities under this Agreement or the other Credit Documents. Without prejudice to the provisions of this Article VIII, each Lender and Issuing Bank hereby irrevocably appoints and authorizes the Collateral Agent (and any successor acting as Collateral Agent) to act as the person holding the power of attorney (in such capacity, the “fondé de pouvoir”) of the Lenders and Issuing Banks as contemplated under Article 2692 of the Civil Code of Quebec, and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties which are conferred upon the fondé de pouvoir under any hypothec. Moreover, without prejudice to such appointment and authorization to act as the person holding the power of attorney as aforesaid, each Lender and Issuing Bank hereby irrevocably appoints and authorizes the Collateral Agent (and any successor acting as Collateral Agent) (in such capacity, the “Custodian”) to act as agent and custodian for and on behalf of the Lenders and Issuing Banks to hold and to be the sole registered holder of any debenture which may be issued under any hypothec, the whole notwithstanding Section 32 of the Act Respecting the Special Powers of Legal Persons (Quebec) or any other applicable law. In this respect, (i) the Custodian shall keep a record indicating the names and addresses of, and the pro rata portion of the obligations and indebtedness secured by any pledge of any such debenture and owing to each Lender and Issuing Bank, and (ii) each Lender and Issuing Bank will be entitled to the benefits of any charged property covered by any hypothec and will participate in the proceeds of realization of any such charged property, the whole in accordance with the terms hereof. Each of the fondé de pouvoir and the Custodian shall (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to fondé de pouvoir and the Custodian (as applicable) with respect to the charged property under any hypothec, any debenture or pledge thereof relating to any hypothec, applicable laws or otherwise, (b) benefit from and be subject to all provisions hereof with respect to the Collateral Agent mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the Lenders or the Issuing Banks, and (c) be entitled to delegate from time to time any of its powers or duties under any hypothec, any debenture or pledge thereof relating to any hypothec, applicable laws or otherwise and on such terms and conditions as it may determine from time to time. Any person who becomes a Lender or an Issuing Bank shall be deemed to have consented to and confirmed: (y) the fondé de pouvoir as the person holding the power of attorney as aforesaid and to have ratified, as of the date it becomes a ~~fiduciary relationship with any Lender. Each~~ Lender ~~irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement~~or Issuing Bank, ~~without any further consent from any Secured Party, in connection with any incurrence~~ all actions taken by the ~~Borrower~~ fondé de pouvoir in such capacity, (z) the Custodian as the agent and custodian as aforesaid and to have ratified, as of ~~Permitted Debt Securities and bind~~ the ~~Secured Parties thereby~~date it becomes a Lender or Issuing Bank, all actions taken by the Custodian in such capacity.

Appears in 1 contract

Sources: First Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)

The Agents. (a) Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. . (b) The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. . (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the duties of the Administrative Agent shall be mechanical and administrative in nature; the Administrative Agent shall not ~~be subject to~~ have by reason of this Agreement or any other Loan Document a fiduciary relationship or other implied ~~duties~~duties in respect of any Lender, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing 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 ~~2.05(j) and Section~~ 9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement or in any other Loan Document, expressed or implied, is intended to or shall be so construed as to impose upon the Administrative Agent any obligations in respect of this Agreement or any other Loan Document except as expressly set forth herein or therein. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful ~~misconduct~~misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. . (d) The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. If the Administrative Agent requests instructions from the Required Lenders with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Document, the Administrative Agent shall be entitled to refrain from such act or taking such action unless and until the Administrative Agent shall have received instructions from the Required Lenders; and the Administrative Agent shall not incur liability to any Lender by reason of so refraining. Without limiting the foregoing, no Lender shall have any right of action whatsoever against the Administrative Agent as a result of the Administrative Agent acting or refraining from acting hereunder or under any other Loan Document in accordance with the instructions of the Required Lenders. (e) The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by the Administrative Agent. The Administrative Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of each Administrative Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent~~. The~~ . (i) Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~by notifying~~ upon 15 days’ prior notice to the Lenders, the Issuing Bank and unless a Default or Event of Default exists, the Borrower. Any such resignation by an Administrative Agent hereunder shall also constitute its resignation as an Issuing Lender and the Swingline Lender, in which case the resigning Administrative Agent (x) shall not be required to issue any further Letters of Credit after delivering such notice or make any additional Swingline Loans after delivering such notice hereunder and (y) shall maintain all of its rights as Issuing Lender or Swingline Lender, as the case may be, with respect to any Letters of Credit issued by it, or Swingline Loans made by it, prior to the date of such resignation. Upon any such resignation, the Required Lenders shall have the ~~right, in consultation with the Borrower,~~ right to appoint a ~~successor~~successor which successor Administrative Agent shall be consented to by the Borrower at all times other than during the existence of an Event of Default under Section 7.01(h) or (i). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 15 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. (ii) The Required Lenders and the Borrower may at any time when the Administrative Agent has become the subject of a proceeding under any Debtor Relief Law, or had a receiver, conservator, trustee or custodian appointed for it, upon no less than 10 Business Days’ prior notice, replace the Administrative Agent. If the Administrative Agent is replaced pursuant to the preceding sentence, the Required Lenders shall have the right to appoint a successor which successor Administrative Agent shall be consented to by the Borrower at all times other than during the existence of an Event of Default under Section 7.01(h) or (i), provided that the successor Administrative Agent shall not be the subject of a proceeding under any Debtor Relief Law, or had a receiver, conservator, trustee or custodian appointed for it and shall succeed to and become vested with all of the rights, powers, privileges and duties of the replaced Administrative Agent, and the replaced Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Credit Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. The provisions of this Article VIII and Section 9.03 shall continue in effect for the benefit of such replaced Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the replaced Administrative Agent was acting as Administrative Agent. Any such replacement of an Administrative Agent hereunder shall automatically, and with no further action required on the part of the Administrative Agent, constitute the resignation of the Administrative Agent in its capacity as an Issuing Lender and the Swingline Lender, in which case the replaced Administrative Agent (x) shall not be required to issue any further Letters of Credit or make any additional Swingline Loans hereunder and (y) shall maintain all of its rights as Issuing Lender or Swingline Lender, as the case may be, with respect to any Letters of Credit issued by it, or Swingline Loans made by it, prior to the date of such replacement. (g) Each Lender acknowledges that it has, independently and without reliance upon the Administrative ~~Agent or any other Lender~~ Agent, and ~~based on such documents and information as~~ to the extent it ~~has deemed~~ deems appropriate, has made ~~its own credit analysis~~ and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall ~~from time to time deem appropriate,~~ continue to make (i) its own ~~decisions~~ independent investigation of the financial condition and affairs of Holdings and its Subsidiaries in connection with the making and the continuance of the Loans and the taking or not taking of any action ~~under or based upon~~ in connection herewith and (ii) its own appraisal of the creditworthiness of Holdings and its Subsidiaries and, except as expressly provided in this Agreement, the Administrative Agent shall not have any duty or responsibility, either initially or on a continuing basis, to provide any Lender or the holder of any promissory note in respect of the Obligations with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or at any time or times thereafter. The Administrative Agent shall not be responsible to any Lender or the holder of any promissory note in respect of the Obligations for any recitals, statements, information, representations or warranties herein or in any document, certificate or other writing delivered in connection herewith or for the execution, effectiveness, genuineness, validity, enforceability, perfection, collectibility, priority or sufficiency of this Agreement or any other Loan Document or ~~related agreement~~ the financial condition of Holdings or any ~~document furnished hereunder~~ of its Subsidiaries or ~~thereunder.~~ be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement or any other Loan Document, or the financial condition of Holdings or any of its Subsidiaries or the existence or possible existence of any Default or Event of Default. (h) The Lenders identified in this Agreement as a the Syndication ~~Agent~~ Agents and a the Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no neither any Syndication Agent nor ~~any~~ the Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender~~. Each Lender irrevocably agrees~~ . (i) Notwithstanding any other provision of this Agreement or any provision of any other Loan Document, each Arranger is named as such for recognition purposes only, and in its capacity as such shall have no powers, duties, responsibilities or liabilities with respect to this Agreement or the other Loan Documents or the transactions contemplated hereby and thereby; it being understood and agreed that each Arranger shall be entitled to all indemnification and reimbursement rights in favor of the Administrative Agent ~~may enter into~~ as, and to the ~~First Lien Intercreditor~~ extent, provided for under Section 9.03. Without limitation of the foregoing, each Arranger shall not, solely by reason of this Agreement ~~and the Second Lien Intercreditor agreement~~or any other Loan Documents, ~~without~~ have any ~~further consent from~~ fiduciary relationship in respect of any ~~Secured Party, in connection with~~ Lender or any ~~incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby~~other Person.

Appears in 1 contract

Sources: Credit Agreement (US Oncology Holdings, Inc.)

The Agents. Each of the Lenders and ~~the~~ Issuing ~~Bank~~ Banks hereby irrevocably appoints the ~~Administrative Agent~~ Agents as its ~~agent~~ agents and authorizes the ~~Administrative Agent~~ Agents to take such actions on its behalf and to exercise such powers as are delegated to the ~~Administrative Agent~~ Agents by the terms hereof and of the ~~Loan~~ other Credit Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent.~~ The bank or banks serving as the ~~Administrative Agent~~ Agents hereunder shall have the same rights and powers in ~~its~~ their capacity as ~~a Lender~~ Lenders or Issuing Banks as any other Lender or Issuing Bank and may exercise the same as though it they were not ~~the Administrative Agent~~Agents, and such bank or banks and ~~its~~ their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Borrower~~ Goodyear or any Subsidiary or other Affiliate thereof as if it they were not ~~the Administrative Agent~~ Agents hereunder. The ~~Administrative Agent~~ Agents shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the ~~foregoing,~~ foregoing (a) the ~~Administrative Agent~~ Agents shall not (save as expressly set out in any Credit Document) be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the ~~Administrative Agent~~ 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~~ hereby that the ~~Administrative Agent is~~ 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 2.05(j) and Section 9.02)~~Majority Lenders, and (c) except as expressly set forth ~~in the Loan Documents~~herein, the ~~Administrative Agent~~ Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information communicated to the Agents by or relating to ~~Holdings, the Borrower~~ Goodyear or any ~~of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity~~Subsidiary. The ~~Administrative Agent~~ Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the ~~Required~~ Majority Lenders (or ~~such other number or percentage of~~ the ~~Lenders~~ Lenders, as ~~shall be necessary under~~ the ~~circumstances as provided in Section 9.02)~~ case may be, or in the absence of ~~its~~ their own gross negligence or willful misconduct. ~~The Administrative Agent~~ In addition, the Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the ~~Administrative Agent~~ Agents by ~~Holdings~~Goodyear, the ~~Borrower~~ European J.V. or a ~~Lender~~Lender or Issuing Bank, and the ~~Administrative Agent~~ Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any ~~Loan~~ Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein or therein, other than to confirm receipt of items expressly required to be delivered to the ~~Administrative Agent~~Agents. The ~~Administrative Agent~~ Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it them to be genuine and to have been signed or sent by the proper Person. The ~~Administrative Agent~~ Agents also may rely upon any statement made to it them orally or by telephone and believed by it them to be made by the proper Person, and shall not incur any liability for relying thereon. The ~~Administrative Agent~~ Agents may consult with legal counsel (who may be counsel for Goodyear or the ~~Borrower~~European J.V.), independent accountants and other experts selected by itthem with reasonable care, and shall not be liable for any action taken or not taken by it them in accordance with the advice of any such counsel, accountants or experts. The ~~Administrative Agent~~ Agents may perform any and all ~~its~~ their duties and exercise ~~its~~ their rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by the ~~Administrative Agent~~Agents. The ~~Administrative Agent~~ Agents and any such ~~subagent~~ sub-agent may perform any and all ~~its~~ their duties and exercise ~~its~~ their rights and powers through their respective ~~Related Parties~~Affiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such ~~subagent~~ sub-agent and to the ~~Related Parties~~ Affiliates of ~~each Administrative Agent~~ the Agents and any such ~~subagent~~sub-agent. Subject to the appointment and acceptance of a successor Agent as provided below, ~~and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative~~ either Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the ~~Borrower.~~ European J.V. Upon any such resignation, the ~~Required~~ Majority Lenders shall have the ~~right, in consultation with the Borrower,~~ right to appoint a ~~successor~~successor with the European J.V.’s written consent (which shall not be unreasonably withheld or delayed and shall not be required from the European J.V. if an Event of Default has occurred and is continuing). If no successor shall have been so appointed by the ~~Required~~ Majority Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent may, on behalf of the ~~Lenders~~ Lenders, with the European J.V.’s written consent (which shall not be unreasonably withheld or delayed and ~~the Issuing Bank~~shall not be required if an Event of Default under clause (a), (b), (h) or (i) of Section 7.01 has occurred and is continuing), appoint a successor ~~Administrative~~ Agent which shall be a bank or an Affiliate thereof, in each case with a net worth of at least $1,000,000,000 and an office in New York, New York~~, or an Affiliate of any such bank~~. Upon the acceptance of its appointment as ~~Administrative~~ Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.~~ After ~~the Administrative~~ an Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring Administrative Agent, its subagents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as ~~Administrative~~ Agent. Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon the ~~Administrative Agent~~ Agents or any other Lender or Issuing Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon the ~~Administrative Agent~~ Agents or any other Lender or Issuing Bank and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. ~~The Lenders identified in this Agreement as a Syndication Agent~~ Notwithstanding any other provision contained herein, each Lender and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees each Issuing Bank (a) acknowledges that the Administrative Agent ~~may enter into~~ is not acting as an agent of Goodyear or any Borrower and that neither Goodyear nor any Borrower will be responsible for acts or failures to act on the ~~First Lien Intercreditor Agreement~~ part of the Administrative Agent and (b) exempts each Agent from the ~~Second Lien Intercreditor agreement, without any further consent from any Secured Party,~~ restrictions set forth in ~~connection with any incurrence by~~ Section 181 of the ~~Borrower of Permitted Debt Securities and bind the Secured Parties thereby~~German Civil Code (Burgerliches Gesetzbuch).

Appears in 1 contract

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

Appears in 1 contract

Sources: Credit Agreement (Velocom Inc)

The Agents. Each of the ~~Lenders~~ Lenders, the Agents and the Issuing ~~Bank~~ Banks hereby irrevocably appoints ~~the~~ (a) JPMCB as Administrative Agent under this Agreement and the other Loan Documents, (b) JPMCB as ~~its agent~~ Collateral Agent for the Lenders, the Agents and the Issuing Banks under this Agreement and the other Loan Documents, and (c) Merrill Lynch, Pierce, Fenner & Smith Incorporated as the Syndication Agent for the Le▇▇▇▇▇, the Agents and t▇▇ ▇▇▇uin▇ ▇▇▇ks under this Agreement and the other Loan Documents. Each Lender, each Agent and each Issuing Bank confirms and agrees to be bound by the terms of the Loan Documents. Each Lender, each Agent and each Issuing Bank authorizes the ~~Administrative Agent~~ Agents to take such actions on its behalf and to exercise such powers as are delegated to the ~~Administrative~~ applicable Agent by the terms of the applicable Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes~~ Neither the Syndication Agent nor any Documentation Agent, in its capacity as such, shall have any responsibilities or authority under this Agreement or the other Loan Documents. Each of ~~this Article VIII, all references to~~ the ~~Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The bank~~ Lenders serving as the Administrative Agent, the Collateral Agent ~~hereunder~~ and the Syndication Agent shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the ~~Administrative Agent~~applicable Agent or Agent under the Restated Credit Agreement or the Loan Documents thereunder, and each of such ~~bank~~ Lenders and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not ~~the Administrative~~ an Agent ~~hereunder~~hereunder or thereunder. ~~The Administrative~~ No Agent shall ~~not~~ have any duties or obligations except those expressly set forth in the applicable Loan Documents. Without limiting the generality of the foregoing, (a) ~~the Administrative~~ no Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative~~ no Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders or Secured Parties as shall be necessary under the circumstances as provided in Section ~~2.05(j) and Section 9.02~~9.02 or the applicable Loan Document), and (c) except as expressly set forth in the Loan Documents, ~~the Administrative~~ no Agent shall ~~not~~ have any duty to disclose, ~~and~~ or shall ~~not~~ be liable for the failure to disclose, any information relating to ~~Holdings,~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as ~~Administrative~~ such Agent or any of its Affiliates in any ~~capacity~~capacity under the Loan Documents, the Restated Credit Agreement or the Loan Documents thereunder. ~~The Administrative~~ No Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. ~~The Administrative~~ No Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~Holdings,~~ the Borrower or a Lender, and ~~the Administrative~~ no Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Without limiting the generality of 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 under the Security Documents and to carry out 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 addition, each Lender, each Agent and each Issuing Bank hereby irrevocably authorizes and directs the Administrative Agent and the Collateral Agent to enter, on behalf of each of them, into the Security Documents and agrees to be bound by the terms of the Security Documents. Each Lender, each Agent and each Issuing Bank hereby irrevocably authorizes and directs the Administrative Agent and the Collateral Agent, as applicable, to enter into amendments from time to time to the Security Documents or take any other action for the purpose of naming as Secured Parties thereunder (i) Lenders that become parties to this Agreement after the Effective Date and/or (ii) Lender Affiliates that become counterparties to Hedging Agreements, the obligations under which are secured by the Security Documents. ~~The Administrative~~ 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. ~~The Administrative~~ 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. ~~The Administrative~~ 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 any such counsel, accountants or experts. ~~The Administrative~~ Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by the ~~Administrative~~ applicable Agent. ~~The Administrative~~ Each Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of each ~~Administrative~~ Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as ~~Administrative~~ Agent. No Agent shall commence any litigation in the name of, or on behalf of, any Lender without the prior consent of such Lender; provided, however, that notwithstanding the foregoing, in the event that any Agent commences any litigation at the direction of the Required Lenders, any Lender that shall not have consented thereto shall remain liable for its pro rata share of the costs and expenses of such Agent pursuant to the provisions of this Agreement. The ~~Administrative~~ Syndication Agent and, subject to the appointment and acceptance of a successor as provided in this paragraph, any other Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the Borrower. Upon any such ~~resignation~~resignation by the Administrative Agent or the Collateral Agent, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a ~~successor~~successor Administrative Agent or Collateral Agent (subject to the approval of the Required Lenders under the Restated Credit Agreement), as the case may be. 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 and the Issuing Bank~~Lenders, 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, hereunder by a successor, such successor Administrative Agent or Collateral Agent, as applicable, shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor ~~Administrative~~ Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After ~~the Administrative~~ any Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring ~~Administrative~~ Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as ~~Administrative~~ an Agent. Each Lender acknowledges that it has, independently and without reliance upon the ~~Administrative Agent~~ 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 ~~Administrative Agent~~ Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The ~~Lenders identified in this Agreement as a~~ obligations of the Administrative Agent, Collateral Agent and the Syndication Agent shall be separate and ~~a Documentation~~ several and none of them shall be responsible or liable for the acts or omissions of any other, except, to the extent that any such Agent serves in more than one agency capacity, such Agent shall ~~not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable~~ be responsible for the acts and omissions relating to ~~all Lenders~~each such agency function. Without ~~limiting~~ the ~~foregoing~~prior written consent of the Required Lenders but subject to Section 9.02(b), ~~no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that~~ the Administrative Agent ~~may~~ and the Collateral Agent will not, except as contemplated by this paragraph, consent to any modification, supplement or waiver of any Security Document. Notwithstanding any other provision of this Article VIII, the Administrative Agent and the Collateral Agent will, at the request of FCX, release (or subordinate such interest) from the Security Documents (and enter into an amendment to any applicable Security Document and execute such other instruments as may be necessary in connection therewith), any interest of the ~~First Lien Intercreditor Agreement~~ Administrative Agent or the Collateral Agent, as applicable, upon receipt by the Administrative Agent of a certificate from a Financial Officer of FCX specifying the asset to be released and the ~~Second~~ related transaction and certifying that after giving effect thereto, no Event of Default shall occur or be continuing, specific assets (which may either be released from the Lien ~~Intercreditor agreement~~of the Security Documents or excluded from the after-acquired property clauses of the Security Documents) as required to be released to allow sales, ~~without~~ transfers or other dispositions, secured financings, capital leases and sale leaseback transactions and pledges of assets expressly permitted hereby. In addition, upon consummation of a Project Financing by a Project Financing Subsidiary, to the extent releases are requested in a certificate from a Financial Officer of FCX, which certificate shall certify that after giving effect to such releases no Event of Default shall occur or be continuing and that such releases are in conformity with clause (D) of the Collateral and Guarantee Requirement, such Project Financing Subsidiary and, if applicable, its parent shall automatically be released from its Guarantee and the pledge of the Equity Interests in such Project Financing Subsidiary shall be released. It is understood and agreed that releases in connection with this paragraph shall not require any further consent ~~from any Secured Party, in connection with any incurrence by~~ of the ~~Borrower of Permitted Debt Securities and bind the Secured Parties thereby~~Required Lenders.

Appears in 1 contract

Sources: Credit Agreement (Freeport McMoran Copper & Gold Inc)

The Agents. Each of the Lenders and the Issuing ~~Bank~~ Lenders hereby irrevocably appoints ~~the Administrative~~ each Agent as its agent hereunder and under the other Loan Documents and authorizes ~~the Administrative~~ each Agent to take such actions on its behalf and to exercise such powers as are delegated to ~~the Administrative~~ such Agent by the terms ~~of the Loan Documents~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. ~~For purposes~~ Each of ~~this Article VIII, all references to~~ the ~~Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The bank~~ Person serving as the Administrative Agent hereunder and the Person serving as 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 the Credit Agreement Administrative Agent or the Collateral Agent, as the case may be, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent or the Collateral Agent, as the case may be, hereunder. ~~The Administrative~~ Neither Agent shall ~~not~~ have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) ~~the Administrative~~ neither Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative~~ neither Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that ~~the Administrative~~ such Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or, to the extent required by this Agreement or ~~such~~ any other ~~number or percentage~~ Loan Document, all of the ~~Lenders as shall be necessary under the circumstances as provided in Section 2.05(j) and Section 9.02~~Lenders), and (c) except as expressly set forth herein and in the other Loan Documents, ~~the Administrative~~ neither Agent shall ~~not~~ have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or as Collateral Agent or any of its Affiliates in any capacity. ~~The Administrative~~ Neither Agent shall ~~not~~ be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or, to the extent required by this Agreement or ~~such~~ any other ~~number or percentage~~ Loan Document, all of the ~~Lenders as shall be necessary under the circumstances as provided in Section 9.02~~Lenders) or in the absence of its own gross negligence or willful misconduct. ~~The Administrative~~ Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~Holdings,~~ the Borrower or a Lender, and ~~the Administrative~~ neither Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV V or elsewhere ~~in any Loan Document~~herein or therein, other than to confirm receipt of items expressly required to be delivered to ~~the Administrative~~ such Agent. ~~The Administrative~~ Each Agent shall be entitled to rely upon, and neither Agent shall ~~not~~ incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. ~~The Administrative~~ 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. ~~The Administrative~~ Each Agent may consult with legal counsel (who may be counsel for ~~the Borrower~~an Obligor), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The Administrative~~ Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by ~~the Administrative~~ such Agent. ~~The Administrative~~ Each Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of ~~each Administrative~~ such Agent and any such ~~subagent~~sub-agent, and shall Credit Agreement apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent or Collateral Agent, as applicable. ~~The Administrative~~ Either Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent's resignation shall nonetheless become effective and (1) the retiring Agent ~~may~~shall be discharged from its duties and obligations hereunder and (2) the Required Lenders shall perform the duties of such Agent (and all payments and communications provided to be made by, ~~on behalf of~~ to or through such Agent shall instead be made by or to each Lender directly) until such time as the Required Lenders ~~and the Issuing Bank,~~ appoint a successor ~~Administrative Agent which shall be a bank with an office~~ agent as provided for above in ~~New York, New York, or an Affiliate of any such bank~~this paragraph. Upon the acceptance of its appointment as ~~Administrative~~ Agent hereunder by a ~~successor~~successor and, in the case of a successor Collateral Agent, upon the execution and filing or recording of such financing statements, or amendments thereto, and such amendments or supplements to the Security Documents, and such other instruments or notices, as may be necessary or desirable, or as the Required Lenders may request, in order to continue the perfection of the Liens granted or purported to be granted by the Security Documents, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ (or retired) Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder (if not already discharged therefrom as provided above in this paragraph). The fees payable by the Borrower to a successor ~~Administrative~~ Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the ~~Administrative~~ Agent’s 's resignation hereunder, the provisions of this Article and Section ~~9.03~~ 10.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring Administrative Agent, its subagents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as ~~Administrative~~ Agent. Each Lender acknowledges that it has, independently and without reliance upon ~~the Administrative~~ 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 Administrative~~ 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, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. ~~The Lenders identified in this Agreement as a~~ Notwithstanding anything herein to the contrary, the Joint Advisors, Co-Lead Arrangers and Joint Bookrunners, the Syndication Agent and a the Co-Documentation ~~Agent~~ Agents named on the cover page of this Agreement shall not have any ~~right, power, obligation, liability, responsibility~~ duties or ~~duty~~ liabilities under this ~~Agreement other than those applicable to all~~ Agreement, except in their capacity, if any, as Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.Credit Agreement

Appears in 1 contract

Sources: Credit Agreement (Pacificare Health Systems Inc /De/)

The Agents. Each of the Lenders ~~and the Issuing Bank~~ hereby irrevocably appoints the ~~Administrative Agent~~ Agents as ~~its agent~~ their agents and authorizes the ~~Administrative Agent~~ Agents to take such actions on its behalf and to exercise such powers as are delegated to the ~~Administrative Agent~~ Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes~~ The Required Lenders may at any time, with the consent of ~~this Article VIII~~the Borrowers (which consent shall not be unreasonably withheld or delayed, ~~all references to~~ and shall not be required if an Event of Default shall have occurred and be continuing), replace the Administrative Agent (it being understood that any such replacement of the Administrative Agent shall be ~~deemed~~ 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 ~~be references to both~~ such replacement and each contemporaneous assignment, the 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~~Agent in accordance with the provisions of the Security Documents. ~~The~~ Any bank serving as ~~the Administrative~~ 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 ~~the Administrative~~ an Agent, and such bank ~~and its Affiliates~~ may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Borrowers or any ~~Subsidiary or other Affiliate thereof~~ of their respective Affiliates as if it were not ~~the Administrative~~ an Agent hereunder. ~~The Administrative~~ No Agent shall ~~not~~ have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) ~~the Administrative~~ no Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative~~ no Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that ~~the Administrative~~ such Agent is required to exercise ~~in writing~~ as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~2.05(j) and Section 9.02~~9.02 or in the Security Documents), and (c) except as expressly set forth in the Loan Documents, ~~the Administrative~~ no Agent shall ~~not~~ have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings, the~~ either Borrower ~~or any of the Subsidiaries~~ that is communicated to or obtained by ~~the~~ a bank serving as ~~Administrative~~ an Agent or any of its Affiliates in any capacity. ~~The Administrative~~ No Agent shall ~~not~~ be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~9.02 or in the Security Documents) or in the absence of its own gross negligence or willful ~~misconduct~~misconduct as determined by non-appealable final judgment of a court of competent jurisdiction. ~~The Administrative~~ No Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~Holdings, the~~ either Borrower or a ~~Lender~~Lender (or communicated by such Agent to any Person), and ~~the Administrative~~ no Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to ~~the Administrative~~ any Agent. ~~The Administrative~~ 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. ~~The Administrative~~ 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. ~~The Administrative~~ Each Agent may consult with legal counsel (who may be counsel for ~~the~~ either Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The Administrative~~ Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by ~~the Administrative~~ such Agent. ~~The Administrative~~ Each Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of ~~each Administrative~~ such Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as ~~Administrative~~ Agent. ~~The~~ Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the ~~Borrower~~Borrowers. Upon any such resignation, the Required Lenders shall have the right, ~~in consultation with~~ subject to the ~~Borrower~~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. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and subject to the ~~Issuing Bank~~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~~ Agent, which shall be any commercial bank organized under the laws of the United States of America or any State thereof having a ~~bank with an office in New York, New York, or an Affiliate~~ combined capital and surplus and undivided profits of ~~any such bank~~not less than $500,000,000. Upon the acceptance of its appointment as the Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as the Administrative Agent. The Collateral Agent may resign in accordance with the provisions of the Security Documents. Each Lender acknowledges that it has, independently and without reliance upon ~~the Administrative~~ 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 Administrative~~ any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. ~~The Lenders identified in this Agreement as a~~ Anything herein to the contrary notwithstanding, no Co-Syndication Agent ~~and a~~ or Co-Documentation Agent listed on the cover page hereof shall ~~not~~ have any ~~right~~rights, ~~power~~powers, ~~obligation, liability, responsibility~~ duties or ~~duty~~ responsibilities under this Agreement or any of the other ~~than those applicable to all Lenders. Without limiting the foregoing~~Loan Documents, ~~no Syndication Agent nor any Documentation Agent shall have or be deemed to have~~ except in its capacity as a ~~fiduciary relationship with any Lender. Each~~ Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties therebyhereunder.

Appears in 1 contract

Sources: Credit Agreement (FirstEnergy Solutions Corp.)

Appears in 1 contract

Sources: Five Year Revolving Credit and Competitive Advance Facility Agreement (Readers Digest Association Inc)

The Agents. Each of the Lenders ~~and the Issuing Bank~~ hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The bank~~ Any Person serving as ~~the~~ Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Holdings, the ~~Borrower or~~ Borrower, any Subsidiary or any other Affiliate ~~thereof~~ of Holdings as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing ~~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 ~~2.05(j) and Section 9.02~~9.02 or Article VII), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings, the Borrower or~~ any of the ~~Subsidiaries~~ Loan Parties that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~9.02 or Article VII) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative Agent~~ it by Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth or referred to in Article IV hereof or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. ~~The~~ Except to the extent that the provisions hereof require writings, the Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for Holdings or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by the Administrative Agent; provided that neither Holdings nor the Borrower shall, without its consent, be liable for any fees payable to any such sub-agent, except for any fees payable in connection with the exercise of rights or remedies when an Event of Default has occurred and is continuing. The Administrative Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of ~~each~~ the Administrative Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. ~~The~~ Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the ~~right, in consultation with the Borrower,~~ right to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Bank~~Lenders, appoint a successor Administrative Agent which shall be a commercial 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The retiring or removed Administrative Agent shall provide to its successor the original or true and accurate copies of all of its books and records relating to this Agreement and the transactions contemplated hereby. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender ~~irrevocably~~ acknowledges and agrees ~~that~~ to the ~~Administrative~~ terms of the Collateral Agency Agreement and to the appointment of the Collateral Agent ~~may enter into~~ to act as collateral agent under the ~~First Lien Intercreditor~~ Collateral Agency Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties therebyother Loan Documents.

Appears in 1 contract

Sources: Credit Agreement (At&t Latin America Corp)

The Agents. ~~Each~~ In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent, JPM Toronto is hereby appointed to act as Canadian Agent and JPMEL is hereby appointed to act as London Agent, on behalf of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably ~~appoints the Administrative Agent as its agent and~~ authorizes the ~~Administrative Agent~~ Agents to take such actions on ~~its~~ behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the ~~Administrative Agent~~ Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes~~ The Administrative Agent and, to the extent expressly provided herein, the Canadian Agent and the London Agent are hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of ~~this Article VIII~~the Lenders and the Issuing Banks all payments of principal of and interest on the Loans, all ~~references~~ payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. 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 ~~be deemed to be references to both~~ have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the ~~Collateral Agent~~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. ~~The bank serving~~ With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as ~~the Administrative~~ Agent ~~hereunder~~ shall have the same rights and powers ~~in its capacity as a Lender~~ as any other Lender and may exercise the same as though it were not ~~the Administrative~~ an Agent, and ~~such bank~~ the Agents and ~~its~~ their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if it were not ~~the Administrative Agent hereunder~~an Agent. The ~~Administrative Agent~~ 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) ~~the Administrative~~ no Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative~~ no Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the ~~Administrative~~ Agent is required to exercise upon receipt of notice 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 ~~2.05(j) and Section 9.02~~10.02), and (c) except as expressly set forth in the Loan Documents, ~~the Administrative~~ no Agent shall ~~not~~ have any duty to disclose, and no Agent shall ~~not~~ be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower~~ Company or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the ~~bank~~ institution serving as ~~Administrative~~ Agent or any of its Affiliates in any capacity. ~~The Administrative~~ No Agent shall ~~not~~ be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~9.02~~10.02) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. ~~The Administrative~~ No Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~Holdings,~~ the ~~Borrower~~ Company or a Lender, and ~~the Administrative~~ no Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to ~~the Administrative~~ such Agent. ~~The Administrative~~ 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. ~~The Administrative~~ 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. ~~The Administrative~~ Each Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The Administrative~~ Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by ~~the Administrative~~ such Agent. ~~The Administrative~~ Each Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of each ~~Administrative~~ Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the revolving credit ~~facilities~~ facility provided for herein as well as activities as ~~Administrative~~ Agent. ~~The Administrative~~ 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 ~~Bank~~ Banks and the ~~Borrower~~Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~Borrower~~Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent may, on behalf of the Lenders and the Issuing ~~Bank~~Banks, appoint a successor ~~Administrative~~ Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.~~ After the ~~Administrative~~ Agent’s resignation hereunder, the provisions of this Article and Section ~~9.03~~ 10.03 shall continue in effect for the benefit of such retiring ~~Administrative~~ Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as ~~Administrative~~ Agent. Each Lender acknowledges that it has, independently and without reliance upon the ~~Administrative Agent~~ 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 ~~Administrative Agent~~ Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.

Appears in 1 contract

Sources: Five Year Revolving Credit Facility Agreement (Albany International Corp /De/)

The Agents. Each of the Lenders and ~~the~~ Issuing ~~Bank~~ Banks hereby irrevocably appoints the ~~Administrative Agent~~ Agents as its ~~agent~~ agents and authorizes the ~~Administrative Agent~~ Agents to take such actions on its behalf and to exercise such powers as are delegated to the ~~Administrative Agent~~ Agents by the terms hereof and of the ~~Loan~~ other Credit Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent.~~ The bank or banks serving as the ~~Administrative Agent~~ Agents hereunder shall have the same rights and powers in ~~its~~ their capacity as ~~a Lender~~ Lenders or Issuing Banks as any other Lender or Issuing Bank and may exercise the same as though it they were not ~~the Administrative Agent~~Agents, and such bank or banks and ~~its~~ 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 it they were not ~~the Administrative Agent~~ Agents hereunder. The ~~Administrative Agent~~ Agents shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the ~~foregoing,~~ foregoing (a) the ~~Administrative Agent~~ Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the ~~Administrative Agent~~ 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~~ hereby that the ~~Administrative Agent is~~ 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 2.05(j) and Section 9.02)~~Majority Lenders, and (c) except as expressly set forth ~~in the Loan Documents~~herein, the ~~Administrative Agent~~ Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information communicated to the Agents by or relating to ~~Holdings,~~ the Borrower or any ~~of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity~~Subsidiary. The ~~Administrative Agent~~ Agents shall not be liable for any action taken or not taken by it them with the consent or at the request of the ~~Required~~ Majority Lenders (or ~~such other number or percentage of~~ the ~~Lenders~~ Lenders, as ~~shall be necessary under~~ the ~~circumstances as provided in Section 9.02)~~ case may be, or in the absence of ~~its~~ their own gross negligence or willful misconduct. ~~The Administrative Agent~~ In addition, the Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the ~~Administrative Agent~~ Agents by ~~Holdings,~~ the Borrower or a ~~Lender~~Lender or Issuing Bank, and the ~~Administrative Agent~~ Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any ~~Loan~~ Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or ~~document,~~ document or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein or therein, other than to confirm receipt of items expressly required to be delivered to the ~~Administrative Agent~~Agents. The ~~Administrative Agent~~ Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it them to be genuine and to have been signed or sent by the proper Person. The ~~Administrative Agent~~ Agents also may rely upon any statement made to it them orally or by telephone and believed by it them to be made by the proper Person, and shall not incur any liability for relying thereon. The ~~Administrative Agent~~ Agents may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by itthem with reasonable care, and shall not be liable for any action taken or not taken by it them in accordance with the advice of any such counsel, accountants or experts. The ~~Administrative Agent~~ Agents may perform any and all ~~its~~ their duties and exercise ~~its~~ their rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by the ~~Administrative Agent~~Agents. The ~~Administrative Agent~~ Agents and any such ~~subagent~~ sub-agent may perform any and all ~~its~~ their duties and exercise ~~its~~ their rights and powers through their respective ~~Related Parties~~Affiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such ~~subagent~~ sub-agent and to the ~~Related Parties~~ Affiliates of ~~each Administrative Agent~~ the Agents and any such ~~subagent~~sub-agent. Subject to the appointment and acceptance of a successor Agent as provided below, ~~and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative~~ either Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the Borrower. Upon any such resignation, the ~~Required~~ Majority Lenders shall have the ~~right, in consultation~~ right to appoint a successor with the Borrower’s written consent (which shall not be unreasonably withheld or delayed and shall not be required from the Borrower if an Event of Default under clause (a), ~~to appoint a successor~~(b), (h) or (i) of Section 7.01 has occurred and is continuing). If no successor shall have been so appointed by the ~~Required~~ Majority Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent may, on behalf of the ~~Lenders~~ Lenders, with the Borrower’s written consent (which shall not be unreasonably withheld or delayed and ~~the Issuing Bank~~shall not be required if an Event of Default under clause (a), (b), (h) or (i) of Section 7.01 has occurred and is continuing), appoint a successor ~~Administrative~~ Agent which shall be a bank or an Affiliate thereof, in each case with a net worth of at least $1,000,000,000 and an office in New York, New York~~, or an Affiliate of any such bank~~. Upon the acceptance of its appointment as ~~Administrative~~ Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~Administrative~~ Agent, and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.~~ After ~~the Administrative~~ an Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring Administrative Agent, its subagents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as ~~Administrative~~ Agent. Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon the ~~Administrative Agent~~ Agents or any other Lender or Issuing Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon the ~~Administrative Agent~~ Agents or any other Lender or Issuing Bank and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. ~~The Lenders identified in this Agreement~~ Notwithstanding any other provision contained herein, (a) each Lender and each Issuing Bank acknowledges that the Administrative Agent is not acting as ~~a Syndication~~ an agent of the Borrower and that the Borrower will not be responsible for acts or failures to act on the part of the Administrative Agent and a (b) none of the Arrangers, Syndication Agents, Documentation ~~Agent shall not~~ Agents, Senior Managing Agents or Managing Agents shall, in its capacity as such, have any ~~right~~responsibilities, ~~power~~fiduciary or otherwise, ~~obligation~~to the Borrower, ~~liability, responsibility~~ to any Lender or ~~duty~~ to any other Person under this Agreement or the other ~~than those~~ Credit Documents. Without prejudice to the provisions of this Article VIII, each Lender and Issuing Bank hereby irrevocably appoints and authorizes the Collateral Agent (and any successor acting as Collateral Agent) to act as the Person holding the power of attorney (in such capacity, the “fondé de pouvoir”) of the Lenders and Issuing Banks as contemplated under Article 2692 of the Civil Code of Quebec, and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties which are conferred upon the fondé de pouvoir under any hypothec. Moreover, without prejudice to such appointment and authorization to act as the Person holding the power of attorney as aforesaid, each Lender and Issuing Bank hereby irrevocably appoints and authorizes the Collateral Agent (and any successor acting as Collateral Agent) (in such capacity, the “Custodian”) to act as agent and custodian for and on behalf of the Lenders and Issuing Banks to hold and to be the sole registered holder of any debenture which may be issued under any hypothec, the whole notwithstanding Section 32 of the Act Respecting the Special Powers of Legal Persons (Quebec) or any other applicable law. In this respect, (i) the Custodian shall keep a record indicating the names and addresses of, and the pro rata portion of the obligations and indebtedness secured by any pledge of any such debenture and owing to each Lender and Issuing Bank and (ii) each Lender and Issuing Bank will be entitled to the benefits of any charged property covered by any hypothec and will participate in the proceeds of realization of any such charged property, the whole in accordance with the terms hereof. Each of the fondé de pouvoir and the Custodian shall (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to the fondé de pouvoir and the Custodian (as applicable) with respect to the charged property under any hypothec, any debenture or pledge thereof relating to any hypothec, applicable laws or otherwise, (b) benefit from and be subject to all ~~Lenders~~provisions hereof with respect to the Collateral Agent mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the Lenders or the Issuing Banks, and (c) be entitled to delegate from time to time any of its powers or duties under any hypothec, any debenture or pledge thereof relating to any hypothec, applicable laws or otherwise and on such terms and conditions as it may determine from time to time. ~~Without limiting the foregoing, no Syndication Agent nor any Documentation Agent~~ Any Person who becomes a Lender or an Issuing Bank shall ~~have or~~ be deemed to have consented to and confirmed: (y) the fondé de pouvoir as the Person holding the power of attorney as aforesaid and to have ratified, as of the date it becomes a ~~fiduciary relationship with any Lender. Each~~ Lender ~~irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement~~or Issuing Bank, ~~without any further consent from any Secured Party, in connection with any incurrence~~ all actions taken by the ~~Borrower~~ fondé de pouvoir in such capacity, and (z) the Custodian as the agent and custodian as aforesaid and to have ratified, as of ~~Permitted Debt Securities and bind~~ the ~~Secured Parties thereby~~date it becomes a Lender or Issuing Bank, all actions taken by the Custodian in such capacity.

Appears in 1 contract

Sources: First Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)

The Agents. Each of the Lenders and the Issuing ~~Bank~~ Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement to serve as ~~its~~ administrative agent and collateral agent hereunder and under the other Loan Documents, and authorizes ~~the Administrative Agent~~ such entity to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~For purposes~~ In addition, to the extent required under the laws of ~~this Article VIII~~any jurisdiction other than the United States, ~~all references~~ each of the Lenders and the Issuing Banks hereby grants to the Administrative Agent ~~shall be deemed~~ any required powers of attorney to ~~be references to both~~ execute any Security Document governed by the ~~Administrative Agent~~ laws of such jurisdiction on such Lender’s or Issuing Bank’s behalf. Each of the Lenders and the ~~Collateral Agent~~Issuing Banks hereby irrevocably appoints the entity named as Issuing Banks Agent in the heading of this Agreement to serve as the issuing banks agent hereunder and under the other Loan Documents and authorizes such entity to take such actions and to exercise such powers as are delegated to the Issuing Banks Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent or the Issuing Banks Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent or the Issuing Banks Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent or the Issuing Banks Agent hereunder. The Administrative Agent and the Issuing Banks Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) neither the Administrative Agent nor the Issuing Banks Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) neither the Administrative Agent nor the Issuing Banks Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing ~~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 ~~2.05(j~~9.02) ~~and Section 9.02)~~or that the Issuing Banks Agent is required to exercise, and (c) except as expressly set forth in the Loan Documents, neither the Administrative Agent nor the Issuing Banks Agent shall ~~not~~ have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the Borrower or any of the Subsidiaries that is communicated to or obtained by the ~~bank~~ entity serving as Administrative Agent, the Issuing Banks Agent or any of ~~its~~ their Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Issuing Banks Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Issuing Banks or in the absence of its own gross negligence or willful misconduct. Neither the Administrative Agent nor the Issuing Banks Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent or the Issuing Banks Agent by ~~Holdings~~the Borrower, ~~the Borrower~~ a Lender or ~~a Lender~~an Issuing Bank, and neither the Administrative Agent nor the Issuing Banks Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or the Issuing Banks Agent, as applicable. Without limiting the foregoing, the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into whether any Lender is at any time an Affiliated Assignee and, unless the Administrative Agent shall have received, pursuant to the covenants, if any, of such Lender set forth in the Assignment and Assumption pursuant to which such Lender shall have purchased and assumed any Loan or Commitment hereunder, prior written notice from any Lender that such Lender is an Affiliated Assignee, the Administrative Agent may deal with such Lender (including for purposes of determining the consent, approval, vote or other similar action of the Lenders or the Lenders of any Class), and shall not incur any liability for so doing, as if such Lender were not an Affiliated Assignee. The Administrative Agent and the Issuing Banks 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. Without limiting the foregoing, the Issuing Banks Agent shall not be responsible for or have any duty to ascertain or inquire into whether any Viacom Beneficiary Cash Collateral Release shall have occurred (or into the amount thereof), and may determine the existence of any Viacom ▇▇ ▇▇▇▇ Collateral Excess solely on the basis of the notices provided to the Issuing Banks Agent by the Borrower pursuant to Section 5.02(e) (and shall incur no liability for any errors in such determination arising from the failure by the Borrower to deliver any such notice). The Administrative Agent and Issuing Banks Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. ~~The~~ Each of the Administrative Agent and the Issuing Banks Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The~~ Each of the Administrative Agent and the Issuing Banks Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by ~~the Administrative Agent~~it. The Administrative Agent, the Issuing Banks Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of ~~each~~ the Administrative Agent, the Issuing Banks Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent or Issuing Banks Agent, as applicable. Without limiting the foregoing, the Issuing Banks Agent may appoint any Issuing Bank as a sub-agent of the Issuing Banks Agent for the purpose of holding any ▇▇ ▇▇▇▇ Collateral. Each Issuing Bank agrees that, notwithstanding any such appointment of an Issuing Bank as a sub-agent of the Issuing Banks Agent, the Issuing Banks Agent shall retain exclusive dominion and control, including the exclusive right of withdrawal, over the ▇▇ ▇▇▇▇ Collateral Account (which term, for purposes of this paragraph and each other provision hereof where the context so requires (including Sections 2.06(h)(vi) and 2.06(h)(vii)), shall include any deposit or other account in which any such sub-agent holds any ▇▇ ▇▇▇▇ Collateral) and the ▇▇ ▇▇▇▇ Collateral (which term, for the avoidance of doubt, shall include any portion thereof held by any sub-agent of the Issuing Banks Agent), except to the extent such dominion and control shall have been delegated to such Issuing Bank as a sub-agent of the Issuing Banks Agent. ~~The~~ Subject to the appointment and acceptance of a successor to the Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Bank~~ Banks and the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~in consultation~~ with the Borrower’s consent (which consent shall not be unreasonably withheld or delayed), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing ~~Bank~~Banks, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Subject to the appointment and acceptance of a successor to the Issuing Banks Agent as provided in this paragraph, the Issuing Banks Agent may resign at any time by notifying the Administrative Agent, the Issuing Banks and the Borrower. Upon any such resignation, the Issuing Banks shall have the right, with the Borrower’s consent (which consent shall not be unreasonably withheld or delayed), to appoint a successor. If no successor shall have been so appointed by the Issuing Banks and shall have accepted such appointment within 30 days after the retiring Issuing Banks Agent gives notice of its resignation, then the retiring Issuing Banks Agent may, on behalf of the Issuing Banks, appoint a successor Issuing Banks Agent 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 Issuing Banks Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Issuing Banks Agent, and the retiring Issuing Banks Agent shall be discharged from its duties and obligations hereunder. After the Issuing Banks Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Issuing Banks Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Issuing Banks Agent. Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Issuing Banks Agent, any other Lender or any other ~~Lender~~ Issuing Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Issuing Banks Agent, any other Lender or any other ~~Lender~~ Issuing Bank and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The ~~Lenders~~ banks (or Affiliates thereof) identified in this Agreement as a ~~Syndication Agent and a Documentation Agent~~ “documentation agent” or “syndication agent” shall not have any right, power~~, obligation~~, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties therebybanks herein.

Appears in 1 contract

Sources: Credit Agreement (Blockbuster Inc)

Appears in 1 contract

Sources: Credit Agreement (Belo a H Corp)

The Agents. Each of the Lenders ~~and the Issuing Bank~~ hereby irrevocably appoints ~~the Administrative Agent~~ Chase and Citibank as its agent hereunder and under the other Financing Documents and authorizes ~~the Administrative Agent~~ Chase and Citibank to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agents by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto (including the execution of the Collateral Agency and Intercreditor Agreement). Each of the Lenders hereby irrevocably appoints Citibank as its paying agent hereunder and under the other Financing Documents and authorizes Citibank to take such actions on its behalf and to exercise such powers as are delegated to the Paying Agent by the terms ~~of the Loan Documents~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. ~~For purposes~~ The following provisions of this Article ~~VIII, all references~~ IX shall apply to the ~~Administrative~~ Paying Agent ~~shall be deemed to be references to both the Administrative Agent and the Collateral Agent~~mutatis mutandis. The ~~bank~~ Persons serving as the Administrative ~~Agent~~ Agents hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative ~~Agent~~Agents, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative ~~Agent~~ Agents hereunder. The Administrative ~~Agent~~ Agents shall not have any duties or obligations except those expressly set forth herein and in the ~~Loan~~ other Financing Documents. Without limiting the generality of the foregoing, (a) the Administrative ~~Agent~~ Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative ~~Agent~~ Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the ~~Loan~~ other Financing Documents that the Administrative ~~Agent is~~ 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 2.05(j) and Section 9.02)~~Lenders, and (c) except as expressly set forth herein and in the ~~Loan~~ other Financing Documents, the Administrative ~~Agent~~ Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the Borrower or any of ~~the~~ its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more subagents appointed by the Administrative Agent. The Administrative Agent and any such subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such subagent and to the Related Parties of each Administrative Agent and any such subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a Syndication Agent and a Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.Agents WORKING CAPITAL AGREEMENT -------------------------

Appears in 1 contract

Sources: Working Capital Agreement (Somerset Power LLC)

The Agents. Each of the Lenders ~~and the Issuing Bank~~ hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The~~ Each bank serving as ~~the Administrative~~ 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 ~~the Administrative~~ an Agent, and such bank and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~the Borrower~~ any Company or ~~any Subsidiary or other~~ Affiliate thereof as if it were not an Agent hereunder and without any duty to account therefor to the ~~Administrative Agent hereunder~~Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the ~~Loan~~ other Credit Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the ~~Loan~~ other Credit Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (~~or such other number or percentage of~~ or, if so specified by this Agreement, all the ~~Lenders as shall be necessary under the circumstances as provided in Section 2.05(j~~Lenders) ~~and Section 9.02),~~ and (c) except as expressly set forth herein and in the ~~Loan~~ other Credit Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings, the Borrower~~ any Company or any of ~~the Subsidiaries~~ its Affiliates that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or, if so specified by this Agreement, all the Lenders, or ~~such other number or percentage of~~ as the ~~Lenders as~~ Administrative Agent shall believe in good faith shall be ~~necessary~~ necessary, under the circumstances as provided in Article VII and Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~Holdings~~the Borrower, ~~the Borrower~~ a Lender or ~~a Lender~~an Issuing Bank, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any ~~Loan~~ other Credit Document, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ under any Credit Document or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in the Credit Documents or the occurrence of any ~~Loan Document~~Default, (iv) the validity, enforceability, effectiveness or genuineness of any ~~Loan~~ Credit Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message) believed by it to be genuine and to have been ~~signed~~ signed, sent or ~~sent~~ otherwise authenticated by a proper Person. An initial list of the proper ~~Person~~Persons with respect to the Borrower appears on Schedule 8. Schedule 8 shall not be altered except in writing by a Person appearing thereon (or by a successor to such Person occupying the equivalent office). The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying ~~thereon~~thereon so long as such statement, in the case of a Borrowing Request, complies with the requirements of Section 2.03 in all material respects (it being understood that oral notices of borrowing will be confirmed in writing by the Borrower in accordance with Section 2.03). In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder or under any other Credit Document by or through any one or more ~~subagents~~ sub-agents appointed by the Administrative Agent. The Administrative Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of ~~each~~ the Administrative Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. ~~The~~ Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the ~~Lenders, the Issuing Bank~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a ~~successor~~successor which, so long as no Event of Default is continuing, shall be reasonably acceptable to the Borrower. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Bank~~Lenders, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder or under the other Credit Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor; provided that the predecessor Administrative Agent shall pay the unearned portion of any fees paid in advance to either the successor Administrative Agent or the Borrower. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Administrative Agent. The Lenders agree to indemnify each Agent in its capacity as such (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), ratably according to their Commitments in effect (or at any time after the Commitments have terminated, their Revolving Credit Exposures) on the date on which indemnification is sought under this Article VIII (or, if indemnification is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with their Commitments (or, if the Commitments have terminated earlier, their Revolving Credit Exposures) immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted against such Agent in any way relating to or arising out of, the Commitments, this Agreement, any of the other Credit Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by such Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from such Agent’s gross negligence or willful misconduct. The agreements in this paragraph shall survive the payment of the Loans and all other amounts payable hereunder. Each Lender acknowledges that it has, independently and without reliance upon ~~the Administrative~~ 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 Administrative~~ any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any ~~other Loan Document or~~ related agreement or any document furnished hereunder or thereunder. The ~~Lenders identified in this Agreement as a~~ Co-Syndication ~~Agent~~ Agents, Joint Lead Arrangers, Joint Bookrunners and a Co-Documentation ~~Agent~~ Agents shall not have any ~~right~~duties or responsibilities under any Credit Document in their capacity as such. None of the Co-Syndication Agents, ~~power~~Joint Lead Arrangers, ~~obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no Syndication Agent nor any~~ Joint Bookrunners and Co-Documentation ~~Agent~~ Agents shall have or be deemed to have a any fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.

Appears in 1 contract

Sources: Credit Agreement (Time Warner Cable Inc.)

The Agents. Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. For purposes of this Article VIII, all references to the Administrative Agent shall be deemed to be references to both the Administrative Agent and the Collateral Agent. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing 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 2.05(j) and Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~subagents~~ sub-agents appointed by the Administrative Agent. The Administrative Agent and any such ~~subagent~~ 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 ~~subagent~~ sub-agent and to the Related Parties of each Administrative Agent and any such ~~subagent~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. ~~The~~ Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent 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 hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~subagents~~ sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. The Lenders identified in this Agreement as a the Syndication Agent and a the Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, no neither the Syndication Agent nor ~~any~~ the Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender irrevocably agrees that the Administrative Agent may enter into the First Lien Intercreditor Agreement and the Second Lien Intercreditor agreement, without any further consent from any Secured Party, in connection with any incurrence by the Borrower of Permitted Debt Securities and bind the Secured Parties thereby.

Appears in 1 contract

Sources: Credit Agreement (St. Louis Pharmaceutical Services, LLC)

Common use of The Agents Clause in Contracts