The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably authorizes the Agents to take such actions on its behalf and to exercise such powers as are delegated to the Agents by the terms of the Credit Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender serving as Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not such Agent, and such Lender and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party or any Affiliate thereof as if it were not such Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Credit Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Credit Documents, no Agent shall have any duty to disclose, or be liable for the failure to disclose, any information relating to the Company or any Subsidiary that is communicated to or obtained by the bank serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower or a Lender, and no such Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Document, (iv) the validity, enforceability, effectiveness or genuineness of any 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 Credit Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for any Credit Party), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Such Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, shall have the right (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withheld) to appoint a successor. If no successor shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 4 contracts
Samples: Credit Agreement (WABCO Holdings Inc.), Credit Agreement (WABCO Holdings Inc.), Credit Agreement (American Standard Companies Inc)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no 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) no 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 Credit Loan Documents that such 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 10.022.05(j) and Section 9.02), and (c) except as expressly set forth in the Credit Loan Documents, no the Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to Holdings, the Company Borrower or any Subsidiary of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Holdings, the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents subagents appointed by such the Administrative Agent. Such The Administrative Agent and any such sub-agent 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 and the provisions of Section 10.03 shall apply to any such sub-agent subagent and to the Related Parties of the Agents each Administrative Agent and any such sub-agentsubagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)Borrower, the Company, which shall not 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksBank, 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 an the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents 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 Agents 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 Agents 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 Credit Document, any Loan Document or related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents The Lenders identified in the heading of this Agreement shallas 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 their capacities as such, have connection with any duties or responsibilities incurrence by the Borrower of any kind under this AgreementPermitted Debt Securities and bind the Secured Parties thereby.
Appears in 4 contracts
Samples: Credit Agreement (Select Medical Corp), Credit Agreement (Select Medical Corp), Credit Agreement (Select Medical Holdings Corp)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Documentshereof, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such an Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party Company or any Affiliate thereof as if it were not such an Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Documentsherein. Without limiting the generality of the foregoing, (a) no 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) no 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 hereby that the Credit Documents that such Administrative Agent is required to exercise in writing 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 10.02Lenders), and (c) except as expressly set forth in herein, the Credit Documents, no Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the any Company or any Subsidiary that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.02Lenders) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Borrower Agent, a any Borrower or a Lender, and no such the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder under any Credit Document or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any the Credit Document, (iv) the validity, enforceability, effectiveness or genuineness of any 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 Credit Documentherein, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for any Credit Party), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Such Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, shall have the right (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withheld) to appoint a successor. If no successor shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 4 contracts
Samples: Credit Agreement (Time Warner Inc), Credit Agreement (Aol Time Warner Inc), Credit Agreement (Time Warner Inc)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks Bank hereby irrevocably appoints the Administrative Agent and Collateral Agent as its agent and authorizes the Agents Administrative Agent and Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent and Collateral Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder, and without any duty to account therefor to the Lenders or the Issuing Banks. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no the Administrative Agent shall not be subject to any fiduciary or other implied dutiesduties to any Lender or Issuing Bank, regardless of whether a Default or Event of Default has occurred and is continuing, (b) no 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 Credit Loan Documents that such 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 10.022.05(j) and Section 9.02), and (cd) except as expressly set forth in the Credit Loan Documents, no the Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to Holdings, the Company Borrower or any Subsidiary of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Holdings, the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents subagents appointed by such the Administrative Agent; provided, however, that the Loan Parties shall make all payments under any Loan Document directly to the Administrative Agent. Such The Administrative Agent and any such sub-agent 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 and the provisions of Section 10.03 shall apply to any such sub-agent subagent and to the Related Parties of the Agents each Administrative Agent and any such sub-agentsubagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)Borrower, the Company, which shall not be unreasonably withheld) to appoint a successorsuccessor 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksBank, 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 an the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents 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 Agents or Administrative 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 Agents or Administrative 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 Credit Document, any Loan Document or related agreement or any document furnished hereunder or thereunder. None Each Lender irrevocably agrees that the Administrative Agent may enter into any and all documents with respect to Collateral and the rights of the institutions named Secured Parties with respect thereto (including the Intercreditor Agreement, any First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, if applicable) as Syndication Agents or Documentation Agents contemplated by and in accordance with the heading provisions of this Agreement shalland the 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 their capacities this Agreement shall have any liability under this Agreement or any other Loan Document in its capacity as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 3 contracts
Samples: 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, 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, where applicable, the Issuing Banks. Each of the Lenders and the Issuing Bank hereby irrevocably appoints the each of the Issuing Banks hereby irrevocably 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 Agents Administrative Agent and the Foreign Currency Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent or the Foreign Currency Agent, as applicable, by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender Each of the banks serving as the Administrative Agent and the 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 such the Administrative Agent or the Foreign Currency Agent, as applicable, and each such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party Holdings, the Parent Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent or the Foreign Currency Agent, as applicable, hereunder. The Agents Administrative Agent and the Foreign Currency Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no 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) no 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 Credit Loan Documents that such the Administrative Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Credit Loan Documents, no the Administrative Agent and the Foreign Currency Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to Holdings, the Company Parent Borrower or any Subsidiary of 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. No 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 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 wilful willful misconduct. No 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 such the Administrative Agent by Holdings, the Borrower AgentParent Borrower, a Subsidiary Term Borrower, a Foreign Subsidiary Borrower or a Lender, and no such neither the Administrative Agent nor the Foreign Currency Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit DocumentLoan Document or the occurrence of any Event of default, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent or the Foreign Currency Agent. 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 in good faith to be genuine and to have been signed or sent by the proper Person. 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 in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. 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 Credit PartyForeign 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. 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 sub-agents appointed by such the Administrative Agent or the Foreign Currency Agent, as applicable. Such Each of the Administrative Agent, the Foreign Currency Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents each Administrative Agent, Foreign Currency Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent or Foreign Currency Agent, as applicable. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyParent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers). Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)Parent Borrower and, if applicable, the Companyrelevant Subsidiary Term Borrower and Foreign Subsidiary Borrower, which shall not be unreasonably withheld) to appoint a successorsuccessor 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksBank, 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 an 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 Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. 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 Agents 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 Agents 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 Credit Document, any Loan Document or related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 3 contracts
Samples: Replacement Facility Amendment (Trimas Corp), Incremental Facility Agreement (Trimas Corp), Credit Agreement (Trimas Corp)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each Issuing Bank hereby irrevocably appoints (i) 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 Issuing Banks hereby irrevocably Senior Loan Documents, together with such actions and powers as are reasonably incidental thereto and (ii) each Collateral Agent as its agent and authorizes the Collateral Agents to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agents by the terms of the Credit Senior Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender The financial institutions serving as Agent the 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 such an Agent, and such Lender financial institutions and its their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Credit Party Subsidiary or any Affiliate thereof of any of the foregoing as if it they were not such Agent Agents hereunder. The Agents No Agent shall not have any duties or obligations except those expressly set forth in the Credit Senior Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Senior Loan Documents that such Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), 2.20 or 9.02) and (c) except as expressly set forth in the Credit Senior Loan Documents, no Agent shall have any duty to disclose, or and no Agent shall be liable for the failure to disclose, any information relating to the Company Borrower or any Subsidiary of the Subsidiaries that is communicated to or obtained by the bank financial institution serving as such Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.022.20 or 9.02) or in the absence of its own gross negligence or wilful misconductmisconduct (as determined by a court of competent jurisdiction by final and non-appealable judgment). No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower or a Lender, as applicable, and no such Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Credit Senior Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Senior Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit Senior 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 Credit Senior Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. Each Any Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all of its duties and exercise any and all of its rights and powers by or through any one or more sub-agents appointed by such Agent. Such Any Agent and any such sub-agent may perform any and all of its duties and exercise any and all of its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents any Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)Borrower, the Company, which shall not 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 Agent gives notice of its resignation, then the retiring Agent may (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing Banks, appoint a successor Agent (which shall be a bank financial institution with an office in New York, New York, or an Affiliate of any such bankfinancial institution). Upon the acceptance of its appointment as 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 Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After an Agent’s 's resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any Senior Loan Document or related agreement or any document furnished hereunder or thereunder. None of Each party hereto authorizes the institutions named as Syndication Agents or Documentation Agents Administrative Agent to enter into customary intercreditor agreements in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind connection with Securitizations and Factoring Transactions permitted under this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Rite Aid Corp), Credit Agreement (Rite Aid Corp)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as administrative agent under the Loan Documents, and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender serving as Agent Each of the 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 such an Agent, and such Lender 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 any Credit Party either Borrower or any Subsidiary or other Affiliate thereof as if it such Person were not such an Agent hereunderhereunder and without any duty to account therefor to the Lenders. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no 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) no the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary powerspower, except discretionary rights and powers expressly contemplated by the Credit Loan Documents that such the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 10.02the 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 Credit Loan Documents, no the Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the Company Borrowers, any Subsidiary or any Subsidiary Affiliate of any of the foregoing that is communicated to or obtained by the bank Person serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.02the Loan Documents) or in the absence of its own gross negligence or wilful misconduct, as determined by a court of competent jurisdiction by a final and non-appealable judgment. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Borrower Agent, a Borrower FCX or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit DocumentLoan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Each The Administrative Agent shall be entitled to rely uponrely, and shall not incur any liability for relying uponrelying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it in good faith to be genuine and to have been signed signed, sent or sent otherwise authenticated by the proper PersonPerson (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof). Each 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 in good faith to be made by the proper PersonPerson (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof), and shall not incur may act upon any liability for relying thereonsuch statement prior to receipt of written confirmation thereof. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by such the Administrative Agent. Such The Administrative Agent and any such sub-agent may perform any of and all its their duties and exercise its their rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 this Article shall apply to any such sub-agent and to the Related Parties of the Agents Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance terms of a successor Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Companyfrom its capacity as such. Upon any In connection with such resignation, the Administrative Agent, or, if the Administrative Agent shall have resignedgive notice of its intent to resign to the Lenders and the Borrowers. Upon receipt of any such notice of resignation, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)Borrowers, the Company, which shall not 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 resignationintent to resign, then the retiring Administrative Agent may (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Agent 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 hereunderhereunder and under the other Loan Documents. After an The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed by the Borrowers and such successor. Notwithstanding the foregoing, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders and the 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. Following the effectiveness of the Administrative Agent’s resignation hereunderfrom its capacity as such, the provisions of this Article and Section 10.03 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as AgentAdministrative Agent and in respect of the matters referred to in the proviso under clause (a) above. Each Lender acknowledges that it has, independently and without reliance upon either Agent, any person listed on the Agents cover page of this Agreement as an arranger, or any other Lender Lender, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon either Agent, any person listed on the Agents cover page of this Agreement as an arranger, or any other Lender Lender, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, Loan Document or any related agreement or any document furnished hereunder or thereunder. None Each Lender, by delivering its signature page to this Agreement on or prior to the Effective Date and funding its Loans on the applicable Closing Date, or delivering its signature page to an Assignment and Assumption pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date and a Closing Date, as applicable. No Credit Party shall have any right individually to enforce any Guarantee of the institutions Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Credit Parties in accordance with the terms thereof. Each Credit Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the foregoing provisions. Notwithstanding anything herein to the contrary, neither the Syndication Agent nor any Person named as Syndication Agents or Documentation Agents in on the heading cover page of this Agreement shall, in their capacities as such, an arranger or a documentation agent shall have any duties or responsibilities obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as a Lender), but all such Persons shall have the benefit of the indemnities provided for hereunder. The provisions of this Article are solely for the benefit of the Agents and the Lenders, and neither Borrower nor any other Loan Party shall have any rights as a third party beneficiary of any kind under this Agreementsuch provisions.
Appears in 2 contracts
Samples: Term Loan Agreement (Freeport McMoran Copper & Gold Inc), Term Loan Agreement (Freeport McMoran Copper & Gold Inc)
The Agents. In order to expedite the transactions contemplated by this AgreementCiticorp North America, JPMCB Inc. is hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, Collateral Agent on behalf of the Lenders and, where applicable, the Issuing BanksLenders. Each of the Lenders and each assignee of the Issuing Banks any such Lender, hereby irrevocably authorizes each of the Agents to take such actions on its behalf of such Lender or assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof and of the Credit other Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender serving as Each Agent hereunder shall have is hereby expressly authorized by the same rights and powers in its capacity as a Lender as Lenders, without hereby limiting any other Lender and may exercise the same as though it were not such Agent, and such Lender and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party or any Affiliate thereof as if it were not such Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Credit Documents. Without limiting the generality of the foregoingimplied authority, (a) no Agent shall be subject to any fiduciary or receive on behalf of the Lenders all payments of principal of and interest on the Loans, all payments and all other implied dutiesamounts due to the Lenders hereunder, regardless and promptly to distribute to each Lender its proper share of whether a Default has occurred and is continuing, each payment so received; (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent is required to exercise in writing by the Required Lenders (or such other number or percentage give notice on behalf of each of the Lenders as shall be necessary under to any of the circumstances as provided Borrower of any Default specified in Section 10.02), this Agreement of which such Agent has actual knowledge acquired in connection with its agency hereunder; and (c) except as expressly set forth in the Credit Documentsto distribute to each Lender copies of all notices, no Agent shall have any duty to disclose, or be liable for the failure to disclose, any information relating to the Company or any Subsidiary that is communicated to or obtained financial statements and other materials delivered by the bank serving Borrower pursuant to this Agreement as Agent or received by such Agent. None of the Agents nor any of its Affiliates in any capacity. No Agent their Related Parties shall be liable to the Lenders as such for any action taken or not taken omitted by it with any of them except to the consent extent finally judicially determined to have resulted from 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 10.02) or in the absence of its her own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower or a Lender, and no such Agent shall 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 Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) or be required to ascertain or to make any inquiry concerning the performance or observance by any Loan Party of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth contained in any Credit 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 Credit Document this Agreement or any other agreement, instrument Loan Documents or document, other instruments or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Credit Document, other than to confirm receipt of items expressly required to be delivered to such Agentagreements. 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 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 Personperson or persons. Each Agent also may rely upon None of the Agents nor any statement made of their Related Parties shall have any responsibility to it orally the Loan Parties on account of the failure of or delay in performance or breach by telephone and believed any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by it any other Lender or the Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in good faith to be made by the proper Person, and shall not incur any liability for relying thereonconnection herewith or therewith. Each Agent may consult with 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 (who may be counsel for any Credit Party), independent accountants and other experts selected by it, it with respect to all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Such Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and 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 Section 10.03 any Loan Document unless it shall apply be requested in writing to any such sub-agent and to do so by the Related Parties of the Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as AgentRequisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, any Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Requisite Lenders shall have the right (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withheld) 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksBank, 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 its any appointment as an Agent hereunder by such a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this Article and Section 10.03 9.05 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as an Agent. With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and such 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 acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Credit Loan Document, any related agreement or any document furnished hereunder or thereunder. None Notwithstanding anything to the contrary in this Agreement, neither of the institutions named SSBI or DBSI, each as a Joint Lead Arranger, in such capacity, nor DBSI, as Syndication Agents Agent, or Table of Contents JPMorgan, as Documentation Agents in the heading of Agent, shall have any obligations, duties or responsibilities, and shall incur any liabilities, under this Agreement shall, in their capacities as such, have or any duties or responsibilities of any kind under this Agreementother Loan Document.
Appears in 2 contracts
Samples: Credit Agreement (Constar International Inc), Credit Agreement (Constar Inc)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Documentsthis Agreement or any other Loan Document, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Documentsherein. Without limiting the generality of the foregoing, (a) no 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) no 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 hereby that the Credit Documents that such Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02), and (c) except as expressly set forth in herein, the Credit Documents, no Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any Subsidiary of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit Document this Agreement or any other agreement, instrument or documentLoan Document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such the Administrative Agent. Such The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right right, with (in consultation with, and with if no Default then exists) the consent of the Borrower (unless an Event of Default has occurred and is continuing pursuant not to clause (g) or (h) of Section 7.01), the Company, which shall not 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 (in consultation withmay, and on behalf of the Lenders, with the consent of the Borrower (unless an Event of not to be unreasonably withheld, delayed or conditioned) if no Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing Banksthen exists, appoint a successor Agent 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 an the Administrative Agent’s resignation hereunder, the provisions of this Article VIII and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 Credit Loan Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 2 contracts
Samples: Term Loan Agreement (Reynolds American Inc), Term Loan Agreement (Reynolds American Inc)
The Agents. In order to expedite the transactions contemplated by this AgreementCiticorp North America, JPMCB Inc. is hereby appointed to act as Administrative Agent, Agent and JPMEL is hereby appointed to act as London Agent, Collateral Agent on behalf of the Lenders and, where applicable, the Issuing BanksLenders. Each of the Lenders and each assignee of the Issuing Banks any such Lender hereby irrevocably authorizes each of the Agents to take such actions on its behalf of such Lender or assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof and of the Credit other Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender serving as Each Agent hereunder shall have the same rights and powers in its capacity as a Lender as is hereby expressly authorized by each Secured Party, without hereby limiting any other Lender and may exercise the same as though it were not such Agent, and such Lender and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party or any Affiliate thereof as if it were not such Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Credit Documents. Without limiting the generality of the foregoingimplied authority, (a) no Agent shall be subject to any fiduciary or receive on behalf of the Secured Parties all payments of principal of and interest on the Obligations, all payments and all other implied dutiesamounts due to the Secured Parties hereunder, regardless and promptly to distribute to each Secured Party its proper share of whether a Default has occurred and is continuing, each payment so received; (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent is required to exercise in writing by the Required Lenders (or such other number or percentage give notice on behalf of each of the Lenders as shall be necessary under the circumstances as provided to Borrower of any Default specified in Section 10.02), and this Agreement of which such Agent has actual knowledge acquired in connection with its agency hereunder; (c) except to distribute to each Lender copies of all notices, financial statements and other materials delivered by Borrower pursuant to this Agreement as expressly set forth received by such Agent; (d) to enter into the Security Documents on behalf of the Secured Parties; and (e) to claim all Obligations owed to any Secured Party against Borrower in the Credit Documents, no Agent shall have any duty to disclose, or be liable its own name for the failure to disclose, purpose of any information relating to Security Documents. None of the Company or any Subsidiary that is communicated to or obtained by the bank serving as Agent or Agents nor any of its Affiliates in any capacity. No Agent their Related Parties shall be liable to the Lenders as such for any action taken or not omitted to be taken by it with any of them except to the consent extent finally judicially determined to have resulted from 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 10.02) or in the absence of its her own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower or a Lender, and no such Agent shall 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 Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) or be required to ascertain or to make any inquiry concerning the performance or observance by any Loan Party of any of the covenantsterms, conditions, covenants or agreements or other terms or conditions set forth contained in any Credit Loan Document. Without limiting the foregoing, (iv) the Lenders acknowledge that the Collateral Agent will use commercially reasonable efforts to substantially comply with the requirements of the Arizona Blind Trust Act, with respect to Mortgaged Properties located in Arizona, pursuant to advice of Arizona local counsel to Borrower. However, the Collateral Agent will in no event be liable to the Lenders for non-compliance with the Arizona Blind Trust Act or for any consequences therefrom. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability, enforceability or effectiveness or genuineness of any Credit Document this Agreement or any other agreement, instrument Loan Documents or document, other instruments or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Credit Document, other than to confirm receipt of items expressly required to be delivered to such Agentagreements. 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 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 PersonPerson or persons. Each Agent also may rely upon None of the Agents nor any statement made of their Related Parties shall have any responsibility to it orally the Loan Parties on account of the failure of or delay in performance or breach by telephone and believed any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by it any other Lender or the Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in good faith to be made by the proper Person, and shall not incur any liability for relying thereonconnection herewith or therewith. Each Agent may consult with execute any and all duties hereunder by 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 (who may be counsel for any Credit Party), independent accountants and other experts selected by it, it with respect to all matters arising hereunder and shall not be liable for any action taken or not taken suffered in good faith by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Such Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and 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 Section 10.03 any Loan Document unless it shall apply be requested in writing to any such sub-agent and to do so by the Related Parties of the Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as AgentRequisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, any Agent may resign at any time by notifying the Lenders, the Issuing Banks Banks, the LC Facility Issuing Bank and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Requisite Lenders shall have the right (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withheld) 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders Lenders, the Issuing Banks and the LC Facility Issuing BanksBank, 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 its any appointment as an Agent hereunder by such a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this Article and Section 10.03 9.05 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as an Agent. With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and such Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Credit Loan Document, any related agreement or any document furnished hereunder or thereunder. None of Notwithstanding anything to the institutions named contrary in this Agreement, neither CGMI and JPMSI, as Joint Lead Arrangers, nor JPMCB as Syndication Agents Agent, in such respective capacities, shall have any obligations, duties or Documentation Agents in the heading of responsibilities, or shall incur any liabilities, under this Agreement shall, in their capacities as such, have or any duties or responsibilities of any kind under this Agreementother Loan Document.
Appears in 2 contracts
Samples: Credit Agreement (Rural Metro Corp /De/), Credit Agreement (Rural Metro Corp /De/)
The Agents. 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, where applicable, the Issuing Banks. (a) Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the entities named as Administrative Agent and Collateral Agent in the heading of this Agreement and its successors to serve as administrative agent and collateral agent, respectively, under the Loan Documents, and authorizes the Agents each Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents each Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender In addition, to the extent required under the laws of any jurisdiction other than the United States of America, each of the Lenders and the Issuing Banks hereby grants to each Agent any required powers of attorney to execute any Security Document governed by the laws of such jurisdiction on such Lender’s or Issuing Bank’s behalf.
(b) The Persons serving as Agent the 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 such an Agent, and such Lender 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 any Credit Party Parent, the Borrower or any other Subsidiary or other Affiliate thereof as if it such Person were not such an Agent hereunder. The Agents hereunder and without any duty to account therefor to the Lenders.
(c) No Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (ai) no Agent the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (bii) no Agent the Agents shall not have any duty to take any discretionary action or to exercise any discretionary powerspower, except discretionary rights and powers expressly contemplated by the Credit Loan Documents that such Agent is the Agents are required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as either Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 10.02the Loan Documents); provided that no Agent shall be required to take any action that, in its opinion, could expose such Agent to liability or be contrary to any Loan Document or applicable law, and (ciii) except as expressly set forth in the Credit Loan Documents, no Agent shall have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to Parent, the Company Borrower, any other Subsidiary or any Subsidiary other Affiliate of any of the foregoing that is communicated to or obtained by the bank Person serving as such Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as such Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 10.02the Loan Documents) or in the absence of its own gross negligence negligence, bad faith or wilful misconductwillful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by Parent, the Borrower AgentBorrower, a Borrower Lender or a Lenderan Issuing Bank, and no such Agent shall not be responsible for or have any duty to ascertain or inquire into (iA) any statement, warranty or representation made in or in connection with any Credit Loan Document, (iiB) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iiiC) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit DocumentLoan Document or the occurrence of any Default, (ivD) the sufficiency, validity, enforceability, effectiveness or genuineness of any Credit Loan Document or any other agreement, instrument or document, or (vE) the satisfaction of any condition set forth in Article IV or elsewhere in any Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to such Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof.
(d) Each Agent shall be entitled to rely uponrely, and shall not incur any liability for relying uponrelying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it in good faith to be genuine and to have been signed signed, sent or sent otherwise authenticated by the proper PersonPerson (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof). Each 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 in good faith to be made by the proper PersonPerson (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof), and shall not incur may act upon any liability for relying thereonsuch statement prior to receipt of written confirmation thereof. Each Agent may consult with legal counsel (who may be counsel for any Credit Partythe 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) Each Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by such the Administrative Agent. Such Each Agent and any such sub-agent may perform any of and all its their duties and exercise its their rights and powers through their respective Related PartiesParties (other than to a Disqualified Institution). The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 this Article shall apply to any such sub-agent and to the such Related Parties of the Agents each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as its activities as Agent. .
(f) Subject to the appointment and acceptance terms of a successor Agent as provided in this paragraph, any either Agent may resign at any time by notifying from its capacity as such. In connection with such resignation, the Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks and the CompanyBorrower. Upon receipt of any such notice of resignation, the Administrative Agent, or, if the Administrative other Agent shall have resigned, and the Required Lenders, Lenders shall have the right (in consultation withright, and with the consent prior written approval of the Borrower (unless an Event of Default has occurred and is continuing pursuant not to clause (g) be unreasonably withheld or (h) of Section 7.01delayed), the Company, which shall not be unreasonably withheld) to appoint a successor. If no successor shall have been so appointed by the Required Lenders with the consent of the Borrower and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignationintent to resign, then the retiring Agent may (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing Banks, appoint a successor Agent with the written approval of the Borrower (such approval not to be unreasonably withheld or delayed), 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 Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunderhereunder and under the other Loan Documents. After an The fees payable by Parent and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed by Parent, the Borrower and such successor. Notwithstanding the foregoing, in the event no successor Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its intent to resign, the retiring Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Borrower, whereupon, on the date of effectiveness of such resignation stated in such notice, (i) the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, provided that, solely for purposes of maintaining any security interest granted to the retiring Agent under any Security Document for the benefit of the Secured Parties, the retiring Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties and, in the case of any Collateral in the possession of the Collateral Agent, shall continue to hold such Collateral, in each case until such time as a successor Collateral Agent is appointed and accepts such appointment in accordance with this paragraph (it being understood and agreed that the retiring Collateral Agent shall have no duty or obligation to take any further action under any Security Document, including any action required to maintain the perfection of any such security interest), and (ii) the successor Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, provided that (A) all payments required to be made hereunder or under any other Loan Document to the retiring Agent for the account of any Person other than the Agents shall be made directly to such Person and (B) all notices and other communications required or contemplated to be given or made to the retiring Agent shall also directly be given or made to each Lender and each Issuing Bank. Following the effectiveness of the retiring Agent’s resignation hereunderfrom its capacity as such, the provisions of this Article and Section 10.03 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 Agent, its sub-agents agent and their respective Related Parties (other than any Disqualified Institutions) in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Agent and in respect of the matters referred to in the proviso under clause (i) above.
(g) Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon either Agent, the Agents Lead 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, the Agents Lead 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 Credit Document, Loan Document or any related agreement or any document furnished hereunder or thereunder. None .
(h) Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Closing Date, or delivering its signature page to an Assignment and Assumption shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Closing Date.
(i) No Secured Party shall have any right individually to realize upon any of the institutions named Collateral or to enforce any Guarantee of the Secured Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent on behalf of the Secured Parties in accordance with the terms thereof. In the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Agents, as agents for and representatives of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Secured Parties at such sale or other disposition. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations provided under the Loan Documents, to have agreed to the foregoing provisions.
(j) Notwithstanding anything to the contrary set forth herein, it is understood and agreed that the Persons serving as Documentation Agents, Co-Arrangers and Co-Syndication Agents hold titles in name only and their titles confer no obligations, duties or Documentation Agents in the heading of responsibilities under this Agreement shallor any other Loan Document, except in their capacities as suchLenders.
(k) In furtherance of the foregoing and not in limitation thereof, have any duties no Hedging Agreement or responsibilities Cash Management Services, the obligations under which constitute Secured Obligations, will create (or be deemed to create) in favor of any kind Secured Party that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under any Loan Document except as expressly provided in the Collateral Agreement. By accepting the benefits of the Collateral, each Secured Party that is a party to any such Hedging Agreement or a provider of any Cash Management Services, as applicable, shall be deemed to have appointed the Collateral Agent to serve as administrative agent and collateral agent under the Loan Documents and agreed to be bound by the Loan Documents as a Secured Party thereunder, subject to the limitations set forth in this paragraph.
(l) To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender in an amount equivalent to any applicable withholding tax. If the Internal Revenue Service or any authority of the United States or other jurisdiction asserts a claim that the Administrative Agent did not properly withhold tax from amounts paid to or for the account of any Lender for any reason (including, without limitation, because the appropriate form was not delivered, was not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstances that rendered the exemption from, or reduction of, withholding tax ineffective), such Lender shall indemnify the Administrative Agent (to the extent that the Administrative Agent has not already been reimbursed by any applicable Loan Party and without limiting the obligation of any applicable Loan Party to do so) fully for all amounts paid, directly or indirectly, by the Administrative Agent as Tax or otherwise, including penalties, additions to Tax and interest, together with all expenses incurred, including legal expenses, allocated staff costs and any out of pocket expenses. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this AgreementAgreement or any other Loan Document against any amount due to the Administrative Agent under this section. For the avoidance of doubt, for purposes of this section, the term “Lender” includes any Issuing Bank and any Swingline Lender.
Appears in 2 contracts
Samples: Credit Agreement (PetroLogistics LP), Credit Agreement (PetroLogistics LP)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no 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) no 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 Credit Loan Documents that such 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 10.022.05(j) and Section 9.02), and (c) except as expressly set forth in the Credit Loan Documents, no the Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to Holdings, the Company Borrower or any Subsidiary of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.022.05(j) or Section 9.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Holdings, the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents subagents appointed by such the Administrative Agent. Such The Administrative Agent and any such sub-agent 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 and the provisions of Section 10.03 shall apply to any such sub-agent subagent and to the Related Parties of the Agents each Administrative Agent and any such sub-agentsubagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject 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 appointment Lenders and acceptance 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 successor 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 as provided 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 this paragraphthe 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 Banks Bank and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (in consultation withright, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)the Borrower, the Company, which shall not 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksBank, 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 an the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents 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 Agents 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 Agents 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 Credit Document, any Loan Document or related agreement or any document furnished hereunder or thereunder. None of The Lenders identified in this Agreement as the institutions named as Syndication Agents or Agent and the Documentation Agents in the heading of shall not have any right, power, obligation, liability, responsibility or duty under this Agreement shallother than those applicable to all Lenders. Without limiting the foregoing, in their capacities as such, neither the Syndication Agent nor the Documentation Agents shall have or be deemed to have a fiduciary relationship with any duties or responsibilities of any kind under this AgreementLender.
Appears in 2 contracts
Samples: Credit Agreement (NeoSpine Surgery, LLC), Credit Agreement (Symbion Inc/Tn)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Documentshereof, together with such actions and powers as are reasonably incidental thereto. Any Lender The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not serving in such Agentagency capacity, and such Lender Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower, any Credit Party Subsidiary or any Enterprise GP or other Affiliate thereof as if it were not such Agent an agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Documentsherein. Without limiting the generality of the foregoing, (a) no 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) no 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 hereby that the Credit Documents that such Administrative Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02), and (c) except as expressly set forth in herein, the Credit Documents, no Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the Company Borrower, any of its Subsidiaries or any Subsidiary Enterprise GP that is communicated to or obtained by the bank any of them while serving as Agent Administrative Agent, as applicable, or by any of its their respective Affiliates in any capacity. No 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 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Documentthis Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Documentherein, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Documentherein, other than to confirm receipt of items expressly required to be delivered to such Agentthem. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such AgentPerson. Such The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right right, with the Borrower’s approval (in consultation withwhich will not be unreasonably withheld or delayed, and with the consent of (unless Borrower’s approval shall not be required if an Event of Default has occurred and which is continuing pursuant to clause (g) or (h) of Section 7.01continuing), the Company, which shall not 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 may, with the Borrower’s approval (in consultation withwhich will not be unreasonably withheld or delayed, and with the consent of (unless Borrower’s approval shall not be required if an Event of Default has occurred and which is continuing pursuant to clause (g) or (h) of Section 7.01continuing), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksBank, 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 Agent, 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 an Agentsuch agent’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 Credit Document, any related agreement or any document furnished hereunder or thereunder. None Neither the Co-Documentation Agents nor the Syndication Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, neither the Co-Documentation Agents nor the Syndication Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgements with respect to each of the institutions named as Syndication Agents or Co-Documentation Agents and the Syndication Agent as it makes with respect to the Administrative Agent in the heading immediately preceding paragraph of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this AgreementArticle VIII.
Appears in 2 contracts
Samples: Credit Agreement (Enterprise GP Holdings L.P.), Credit Agreement (Enterprise GP Holdings L.P.)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no 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) no 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 Credit Loan Documents that such 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 10.022.05(j) and Section 9.02), and (c) except as expressly set forth in the Credit Loan Documents, no the Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to Holdings, the Company Borrower or any Subsidiary of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Holdings, the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents subagents appointed by such the Administrative Agent; provided, however, that the Loan Parties shall make all payments under any Loan Document directly to the Administrative Agent. Such The Administrative Agent and any such sub-agent 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 and the provisions of Section 10.03 shall apply to any such sub-agent subagent and to the Related Parties of the Agents each Administrative Agent and any such sub-agentsubagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)Borrower, the Company, which shall not be unreasonably withheld) to appoint a successorsuccessor 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksBank, 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 an the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents 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 Agents 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 Agents 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 Credit Document, any Loan Document or related agreement or any document furnished hereunder or thereunder. None Each Lender irrevocably agrees that the Administrative Agent may enter into any and all documents with respect to Collateral and the rights of the institutions named Secured Parties with respect thereto (including the Intercreditor Agreement, any First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, if applicable) as Syndication Agents or Documentation Agents contemplated by and in accordance with the heading provisions of this Agreement shalland the 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 their capacities this Agreement shall have any liability under this Agreement or any other Loan Document in its capacity as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 2 contracts
Samples: 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, 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no 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) no 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 Credit Loan Documents that such 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 10.022.05(j) and Section 9.02), and (c) except as expressly set forth in the Credit Loan Documents, no the Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to Holdings, the Company Borrower or any Subsidiary of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Holdings, the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents subagents appointed by such the Administrative Agent. Such The Administrative Agent and any such sub-agent 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 and the provisions of Section 10.03 shall apply to any such sub-agent subagent and to the Related Parties of the Agents each Administrative Agent and any such sub-agentsubagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)Borrower, the Company, which shall not 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksBank, 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 an the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents 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 Agents 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 Agents 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 Credit Document, any Loan Document or related agreement or any document furnished hereunder or thereunder. None The Issuing Bank shall act on behalf of the institutions named Lenders 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 Article VIII included the Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect to the issuing Bank. The Arrangers and the Syndication Agents or Documentation Agents in the heading of this Agreement shallAgent, in their respective capacities as such, shall have any no duties or responsibilities of any kind responsibilities, and shall incur no liability, under this AgreementAgreement and the other Loan Documents.
Appears in 2 contracts
Samples: Credit Agreement (AGA Medical Holdings, Inc.), Credit Agreement (AGA Medical Holdings, Inc.)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks Bank hereby irrevocably appoints the Administrative Agent and Collateral Agent as its agent and authorizes the Agents Administrative Agent and Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent and Collateral Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder, and without any duty to account therefor to the Lenders. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit 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) no 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) no 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 Credit Loan Documents that such 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 10.022.05(j) and Section 9.02), and (cd) except as expressly set forth in the Credit Loan Documents, no the Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to Holdings, the Company Borrower or any Subsidiary of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Holdings, the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents subagents appointed by such the Administrative Agent; provided, however, that the Loan Parties shall make all payments under any Loan Document directly to the Administrative Agent. Such The Administrative Agent and any such sub-agent 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 and the provisions of Section 10.03 shall apply to any such sub-agent subagent and to the Related Parties of the Agents each Administrative Agent and any such sub-agentsubagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)Borrower, the Company, which shall not be unreasonably withheld) to appoint a successorsuccessor 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksBank, 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 an the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents 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 Agents Administrative 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 Agents Administrative 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 Credit Document, any Loan Document or related agreement or any document furnished hereunder or thereunder. None Each Lender irrevocably agrees that the Administrative Agent may enter into any and all documents with respect to Collateral and the rights of the institutions named 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 Syndication Agents or Documentation Agents contemplated by and in accordance with the heading provisions of this Agreement shalland the Security Documents without any further consent from any Secured 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 their capacities this Agreement shall have any liability under this Agreement or any other Loan Document in its capacity as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 2 contracts
Samples: 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, 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of hereof and by the Credit other Financing Documents, together with such actions and powers as are reasonably incidental thereto. Any WestDeutsche Landesbank Girozentrale, New York Branch is hereby appointed Syndication Agent hereunder and under the other Financing Documents and each Lender hereby authorizes Syndication Agent to act as its agent in accordance with the terms hereof and the other Financing Documents. Dresdner Bank A.G. is hereby appointed Documentation Agent hereunder, and each Lender hereby authorizes Documentation Agent to act as its agent in accordance with the terms hereof and the other Financing Documents. As of the Closing Date, all the respective obligations of WestDeutsche Landesbank Girozentrale, New York Branch, in its capacity as Syndication Agent, and Dresdner Bank A.G., in its capacity as Documentation Agent, shall terminate. 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business 149 with any Credit Party the Company or any other Affiliate thereof as if it were not such the Administrative Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Documentsherein. Without limiting the generality of the foregoing, (a) no 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) no 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 hereby that the Credit Documents that such Administrative Agent is required to exercise in writing by the Required Majority Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in this Agreement, the Credit Documents, no Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the Company or any Subsidiary that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Majority Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Borrower Agent, a Borrower Company or a Lender, and no such 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 Credit other Financing Document, (ii) the contents of any certificate, report or other document delivered hereunder hereunder, under any other Financing Document or in connection herewithherewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or in any Credit other Financing Document, (iv) the validity, enforceability, effectiveness or genuineness hereof, of any Credit other Financing Document or of any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein or in any Credit other Financing Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Company), independent accountants and 150 other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such the Administrative Agent. Such The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall, where appropriate, take into account the interests of the Secured Parties. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the Company. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Majority Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withheld) to appoint a successor. If no successor shall have been so appointed by the Majority 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and in consultation with the Issuing BanksCompany, 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 Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After an the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section 10.03 10.3 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Administrative Agent. The Lenders agree to indemnify the Administrative Agent and each Related Party of the Administrative Agent (to the extent not reimbursed by the Company), ratably according to the respective principal amounts of the Loans owing to them and 151 Commitments issued by them, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgements, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against the Administrative Agent or such Related Party in any way relating to or arising out hereof or any other Financing Document or any action taken or omitted by the Administrative Agent or such Related Party under this Agreement or any other Financing Document, PROVIDED that no Lender shall be liable to the Administrative Agent or such Related Party for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgements, suits, costs, expenses or disbursements resulting from the Administrative Agent's or such Related Party's gross negligence or willful misconduct. Without limitation of the foregoing, each Lender agrees to reimburse the Administrative Agent and each Related Party of the Administrative Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including counsel fees) incurred by the Administrative Agent or such Related Party in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, to the extent that the Administrative Agent or such Related Party is not reimbursed for such expenses by the Company. Each Lender acknowledges that it has, independently and without reliance upon the Agents Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis of the Company and its Subsidiaries and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents 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 Credit Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Flag Telecom Holdings LTD), Credit Agreement (Flag Telecom Holdings LTD)
The Agents. In order to expedite 12.1. Appointment
(a) Each Lender hereby designates and appoints Chase as the transactions contemplated by Administrative Agent, UBS as the Syndication Agent, PNC as the Documentation Agent and the Arrangers as the Arrangers of such Lender under 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks Lender hereby irrevocably authorizes the Agents Administrative Agent and the Arrangers to take such actions on its behalf under the provisions of this Agreement and the Loan Documents and to exercise such powers as are delegated to the Agents by the terms of the Credit Documents, set forth herein or therein together with such actions and other powers as are reasonably incidental thereto. Any Lender serving The Administrative Agent and the Arrangers each agrees to act as Agent hereunder shall have such on the same rights and powers express conditions contained in its capacity as a Lender as any other Lender and may exercise the same as though it were not such Agent, and such Lender and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party or any Affiliate thereof as if it were not such Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Credit Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, this Article XII.
(b) no Agent The provisions of this Article XII are solely for the benefit of the Administrative Agent, the Syndication Agent, the Documentation Agent, the Arrangers and the other Lenders, and neither the Borrower, RMOP, the Company nor any Subsidiary of the Borrower or RMOP shall have any duty rights to take rely on or enforce any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and provisions hereof (c) except other than as expressly set forth in the Credit Documents, no Agent shall have any duty to disclose, or be liable for the failure to disclose, any information relating to the Company or any Subsidiary that is communicated to or obtained by the bank serving as Agent or any of Section 12.7). In performing its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary respective functions and duties under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower or a Lender, and no such Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Document, (iv) the validity, enforceability, effectiveness or genuineness of any 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 Credit Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for any Credit Party), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Such Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignationAgreement, the Administrative Agent, or, if the Administrative Agent shall have resignedDocumentation Agent, the Required Lenders, shall have the right (in consultation withSyndication Agent, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which each Arranger shall not be unreasonably withheld) to appoint a successor. If no successor shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf act solely as agents of the Lenders and do not assume and shall not be deemed to have assumed any obligation or relationship of agency, trustee or fiduciary with or for the Issuing BanksCompany, appoint a successor the Borrower, RMOP or any Subsidiary of the Borrower or RMOP. The Administrative Agent, the Documentation Agent, the Syndication Agent which shall be a bank with an office in New York, New Yorkand each Arranger may perform any of their respective duties hereunder, or an Affiliate of any such bank. Upon under the acceptance of its appointment as Agent hereunder Loan Documents, by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and or through their respective Related Parties in respect of any actions taken agents or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreementemployees.
Appears in 1 contract
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Agents as its agents and authorizes the Agents to take such actions on its behalf and to exercise such powers as are delegated to the Agents by the terms of the Credit Documentshereof, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Credit Documentsherein. Without limiting the generality of the foregoing, foregoing (a) no Agent the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, and (b) no Agent the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent is required permitted hereunder unless requested to exercise do so in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Credit Documents, no Agent shall have any duty to disclose, or be liable for the failure to disclose, any information relating to the Company or any Subsidiary that is communicated to or obtained by the bank serving as Agent or any of its Affiliates in any capacityLenders. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent In addition, the Agents shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Documentthis Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Documentherein, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Documentherein, other than to confirm receipt of items expressly required to be delivered to such Agentthe Agents. Each Agent The 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each Agent The Agents 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. Each Agent of the Agents may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by 48 44 it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent of the Agents may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Such The Administrative Agent, the CAF Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related PartiesAffiliates or its or its Affiliates' employees. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent, to the Affiliates of the Administrative Agent, the CAF Agent and any such sub-agent and to the Related Parties directors, officers, employees, agents and advisors of the Agents and Administrative Agent, the CAF Agent, any such sub-agent, agent and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as AgentAffiliates. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, any either Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, shall have the right (in consultation with, and with the consent of the Borrower (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withheld) shall have the right to appoint a successorsuccessor Agent. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may (in consultation withmay, and with the consent of the Borrower (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withhold such consent and which shallwithheld), if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Agent which shall be a bank with an office in Dallas or The City of 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 its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After an the Agent’s 's resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Agent. Each Lender agrees (a) to reimburse the Agents, on demand, in the amount of its pro rata share at the time reimbursement is sought (based on its Commitment hereunder or, if the Commitments shall have expired or terminated, based on its portion of the total Revolving Credit Exposures and outstanding Competitive Loans) of any expenses incurred for the benefit of the Lenders by the Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Borrower and (b) 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 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 action taken or omitted by it or any of them under this Agreement, to the extent the same shall not have been reimbursed by the Borrower, provided that no Lender shall be liable to any Agent or any such other indemnified 49 45 person for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or wilful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Belo a H Corp)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is the Persons named in the heading of this Agreement are hereby appointed to act as Administrative Agent, London Agent and JPMEL is hereby appointed to act as London Agent, Tokyo Agent on behalf of the Lenders and, where applicable, and the Issuing BanksBank. Each of the Lenders Lenders, each assignee of any Lender and each of the Issuing Banks Bank hereby irrevocably authorizes the Agents to take such actions on its behalf of such Lender or assignee or the Issuing Bank and to exercise such powers as are delegated to the Agents by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any The Administrative Agent and, to the extent expressly provided herein, the other Agents are hereby expressly authorized by the Lenders and the Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Bank 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 serving 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 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, the Administrative Agent is hereby expressly authorized to release any Subsidiary Guarantor from its obligations under the Subsidiary Guarantee Agreement in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person other than the Company or an Affiliate of the Company in a transaction permitted by Section 6.04. With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as Agent 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 such an Agent, and such Lender the Agents and its their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Company or any Subsidiary or other Affiliate thereof as if it were not such Agent hereunderan Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Loan Documents that such Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.0211.02), and (c) except as expressly set forth in the Credit Loan Documents, no Agent shall have any duty to disclose, or and no Agent shall be liable for the failure to disclose, any information relating to the Company or any Subsidiary of its Subsidiaries that is communicated to or obtained by the bank institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.0211.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower or a (in which case such Agent shall give written notice to each other Lender), and no such Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewithherewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Documentherein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for any Credit PartyBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Such Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the Company. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not 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 Agent gives notice of its resignation, then the retiring Agent may (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksBank, appoint a successor 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 Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After an the Agent’s 's resignation hereunder, the provisions of this Article and Section 10.03 11.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any Loan Document or related agreement or any document furnished hereunder or thereunder. None of Each Lender hereby acknowledges that the institutions named as Syndication Agents or Agent and each Documentation Agents in the heading of this Agreement shallAgent has no rights, in their capacities as such, have any duties or responsibilities of any kind under this Agreementliability hereunder other than in its capacity as a Lender.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is the Persons named in the heading of this Agreement are hereby appointed to act as Administrative Agent, London Agent and JPMEL is hereby appointed to act as London Agent, Canadian Agent on behalf of the Lenders and, where applicable, the Issuing BanksLenders. Each of the Lenders and each assignee of the Issuing Banks any Lender hereby irrevocably authorizes the Agents to take such actions on its behalf of such Lender or assignee and to exercise such powers as are delegated to the Agents by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any 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 serving 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 Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as Agent 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 such an Agent, and such Lender the Agents and its their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party of the Borrowers or any Affiliate of their Subsidiaries or other Affiliates thereof as if it were not such Agent hereunderan Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any 66 discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Loan Documents that such Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Credit Loan Documents, no Agent shall have any duty to disclose, or and no Agent shall be liable for the failure to disclose, any information relating to any of the Company Borrowers or any Subsidiary of their Subsidiaries that is communicated to or obtained by the bank institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower or a (in which case such Agent shall give written notice to each other Lender), and no such Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewithherewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Documentherein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for any Credit PartyBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Such Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the Company. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (in consultation withright, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not 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 Agent gives notice of its resignation, then the retiring Agent may (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksLenders, appoint a successor 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 Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After an the Agent’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as 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 Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any Loan Document or related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents Lenders identified on the facing page or Documentation Agents in the heading signature pages of this Agreement shallor elsewhere herein as a “co-syndication agent” shall have any right, in their capacities power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no 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) no 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 Credit Loan Documents that such 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 10.022.05(j) and Section 9.02), and (c) except as expressly set forth in the Credit Loan Documents, no the Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to Holdings, the Company Borrower or any Subsidiary of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.022.05(j) or Section 9.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Holdings, the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents subagents appointed by such the Administrative Agent. Such The Administrative Agent and any such sub-agent 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 and the provisions of Section 10.03 shall apply to any such sub-agent subagent and to the Related Parties of the Agents each Administrative Agent and any such sub-agentsubagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject Each of the Lenders, the Issuing Banks 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 appointment Lenders and acceptance the Issuing Banks 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 successor dual firewall and a User ID/Password Authorization System) and the Approved Electronic Platform is secured through a single-user-per-deal authorization method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders and the Issuing Banks and the Loan Parties acknowledge and agree that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution. In consideration for the convenience and other benefits afforded by such distribution and for the other consideration provided hereunder, the receipt and sufficiency of which is hereby acknowledged, each of the Lenders, the Loan Parties and the Issuing Banks hereby approve distribution of the Approved Electronic Communications through the Approved Electronic Platform and understands and assumes the risks of such distribution. The Approved Electronic Communications and the Approved Electronic Platform are provided “as is” and “as available”. None of the Administrative Agent as provided 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 this paragraphthe Approved Electronic Communications and the Approved Electronic Platform. No warranty of any kind, express, implied or statutory (including, without limitation, any warranty of merchantability, fitness for a particular purpose, noninfringement of third party rights or freedom from viruses or other code defects) is made by the Agent Affiliates in connection with the Approved Electronic Communications or the Approved Electronic Platform. Each of the Lenders, the Issuing Banks, and the Loan Parties agrees that the 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 Banks and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (in consultation withright, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)the Borrower, the Company, which shall not 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing 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 an the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents 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 Agents 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 Agents 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 Credit Document, any Loan Document or related agreement or any document furnished hereunder or thereunder. None The Lenders identified in this Agreement as the Syndication 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, neither Syndication Agent shall have or be deemed to have a fiduciary relationship with any Lender. To the extent required by any applicable laws, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. Without limiting or expanding the provisions of Section 2.17, each Lender shall indemnify and hold harmless the Administrative Agent against, within 10 days after written demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent as a result of the institutions named failure of the Administrative Agent to properly withhold any Tax from amounts paid to or for the account of such Lender for any reason (including, without limitation, because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of, withholding Tax ineffective). A certificate as Syndication Agents to the amount of such payment or Documentation Agents liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due the Administrative Agent under this paragraph. The agreements in this paragraph shall survive the heading resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Revolving Commitments and the repayment, satisfaction or discharge of all other obligations. For the avoidance of doubt, the term “Lender” shall, for purposes of this Agreement shallparagraph, in their capacities as such, have include any duties or responsibilities of any kind under this AgreementIssuing Bank.
Appears in 1 contract
Samples: Credit Agreement (Symbion Inc/Tn)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender Person serving as 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 such the Administrative Agent, and such Lender Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no 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) no 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 Credit Loan Documents that such the Administrative Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02), and (c) except as expressly set forth in the Credit Loan Documents, no the Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to any of the Company or any Subsidiary Loan Parties that is communicated to or obtained by the bank Person serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.029.02) or in the absence of its own gross negligence or wilful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent it by the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such the Administrative Agent. Such The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksLenders, 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 an the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 Credit Document, any Loan Document or related agreement or any document furnished hereunder or thereunder. None Each Lender acknowledges and agrees to the terms of the institutions named Collateral Agency Agreement and to the appointment of the Collateral Agent to act as Syndication Agents or Documentation Agents in collateral agent under the heading of this Collateral Agency Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreementand the other Security Documents.
Appears in 1 contract
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks Bank hereby irrevocably appoints the Administrative Agent and Collateral Agent as its agent and authorizes the Agents Administrative Agent and Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent and Collateral Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder, and without any duty to account therefor to the Lenders. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no 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) no 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 Credit Loan Documents that such 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 10.022.05(j) and Section 9.02), and (ccd) except as expressly set forth in the Credit Loan Documents, no the Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to Holdings, the Company Borrower or any Subsidiary of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Holdings, the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents subagents appointed by such the Administrative Agent; provided, however, that the Loan Parties shall make all payments under any Loan Document directly to the Administrative Agent. Such The Administrative Agent and any such sub-agent 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 and the provisions of Section 10.03 shall apply to any such sub-agent subagent and to the Related Parties of the Agents each Administrative Agent and any such sub-agentsubagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)Borrower, the Company, which shall not be unreasonably withheld) to appoint a successorsuccessor 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksBank, 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 an the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents 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 Agents Administrative 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 Agents Administrative 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 Credit Document, any Loan Document or related agreement or any document furnished hereunder or thereunder. None Each Lender irrevocably agrees that the Administrative Agent may enter into any and all documents with respect to Collateral and the rights of the institutions named 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 Syndication Agents or Documentation Agents contemplated by and in accordance with the heading provisions of this Agreement shalland the Security Documents without any further consent from any Secured 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 their capacities this Agreement shall have any liability under this Agreement or any other Loan Document in its capacity as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, 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, where applicable, the Issuing Banks. Each of the Lenders (including in any Lender’s other capacity hereunder), the Issuing Bank and each of the Issuing Banks Other Secured Counterparties (each of the foregoing referred to as the “Lenders” for purposes of this Article 10) hereby irrevocably appoints Xxxxxx Xxxxxxx Senior Funding, Inc. as each of the Administrative Agent and Collateral Agent and authorizes the Agents each Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents any Agent by the terms of the Credit Documentsthis Agreement or any other Loan Document, together with such actions and powers as are reasonably incidental thereto. Any Without limiting the generality of the foregoing, each Agent is hereby expressly authorized by the Lenders to (i) execute any and all documents (including any release) with respect to the Collateral, as contemplated by and in accordance with the provisions of this Agreement and any other Loan Document, (ii) negotiate, enforce or settle any claim, action or proceeding affecting the Lenders in their capacity as such, at the discretion of the Required Lenders, which negotiation, enforcement or settlement will be binding upon each Lender and (iii) to approve or disapprove of any transaction described in Section 6.03. Except, in each case, as set forth in the sixth paragraph of this Article, the provisions of this Article are solely for the benefit of the Agents and the Lenders, and the Borrower shall not have rights as a third party beneficiary of any such provisions. The Person 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 such Agentan Agent and the term “Lender” or “Lenders” shall, and such Lender unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as an Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such an Agent hereunderhereunder and without any duty to account therefor to the Lenders. The Agents Neither Agent shall not have any duties or obligations except those expressly set forth herein and in the Credit other Loan Documents. Without limiting the generality of the foregoing, neither Agent: (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the Credit other Loan Documents that 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 10.0211.02 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 any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall, except as expressly set forth herein and in the Credit other Loan Documents, no Agent shall have any duty to disclose, or nor shall it be liable for the failure to disclose, any information relating to the Company Borrower or any Subsidiary of its Affiliates that is communicated to or obtained by the bank Person serving as such Agent or any of its Affiliates in any capacity. No Neither Agent shall be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.0211.02) or (ii) in the absence of its own gross negligence or wilful willful misconduct. No Agent The Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower or a Lender, and no such 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 Credit other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in herein or the occurrence of any Credit DocumentDefault, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any Credit other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV 4 or elsewhere in any Credit Documentherein, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent and each Arranger 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each Agent and each Arranger may also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, that by its terms must be fulfilled to the satisfaction of a Lender or the Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. Each Agent and each Arranger may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agentit. Such Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any either Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Administrative AgentRequired Lenders shall have the right, orin consultation with the Borrower, if to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States; provided that, in the event that such successor or Administrative Agent appointed by the Required Lenders is not one of Xxxxxx Xxxxxxx Senior Funding, Inc., Xxxxxxx Sachs Bank USA or X.X. Xxxxxx Securities LLC, or any of their respective affiliates, and so long as no Event of Default shall have resignedoccurred and be continuing, the Required Lenders, Borrower shall have the right to consent to such successor Administrative Agent (in consultation with, and with the such consent of (unless an Event of Default has occurred and is continuing pursuant not to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withheld) to appoint a successorwithheld or delayed). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Administrative Agent may (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bankmeeting the qualifications set forth above. Upon the acceptance of its appointment as either Administrative Agent or Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent(or retired) Administrative Agent or Collateral Agent (as applicable), and the retiring Administrative Agent or Collateral Agent (as applicable) shall be discharged from its duties and obligations hereunderhereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Article). The fees payable by the Borrower to any successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After an Agent’s resignation hereunder, the provisions of this Article and Section 10.03 11.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents either Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Loan Document, any related agreement or any document furnished hereunder or thereunder. None Anything herein to the contrary notwithstanding, none of the institutions named as Syndication Agents or Documentation Agents in the heading of this Agreement shall, in their capacities as such, Arrangers shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, Collateral Agent or a Lender hereunder. The Borrower, any Lender and any Affiliate of a Lender may from time to time designate a qualifying agreement as a Secured Agreement upon written notice (a “Designation Notice”) to the Administrative Agent from the Borrower and such Lender and such Affiliate, in form reasonably satisfactory to the Agent. No Other Secured Counterparty that obtains the benefits of any kind Loan Document or any Collateral by virtue of this paragraph shall have any right in connection with the management or release of the Collateral or of the obligations of any Obligor under the Loan Documents, including, without limitation, any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article 10 to the contrary, no Agent shall be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Secured Agreements. By accepting the benefits of the Collateral, each Other Secured Counterparty shall be deemed to have appointed the Administrative Agent to serve as administrative agent and collateral agent under the Loan Documents and agreed to be bound by the Loan Documents as a Secured Party thereunder, subject to the limitations set forth in this paragraph. Further, each Secured Party hereby irrevocably authorizes the Collateral Agent:
(a) to release any Lien on any property granted to or held by the Collateral Agent under any Loan Document (i) upon satisfaction of any conditions to release specified in any Collateral Document, (ii) that is disposed of or to be disposed of as part of or in connection with any disposition permitted hereunder or under any other Loan Document to any Person other than an Obligor, (iii) subject to Section 11.02, if approved, authorized or ratified in writing by the Required Lenders, (iv) owned by a Guarantor upon release of such Guarantor from its obligations under this Agreement, or (v) as expressly provided in the Collateral Documents;
(b) to release any Guarantor from its obligations hereunder if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder; and
(c) upon request of the Borrower, to take such actions as shall be required to subordinate any Lien on any property granted to the Collateral Agent to the holder of a Lien permitted by Section 6.02 or to enter into any intercreditor agreement with the holder of any such Lien. Upon request by the Collateral Agent at any time, the Required Lenders will confirm in writing the Collateral Agent’s authority to release its interest in particular types or items of property, or to release any Guarantor from its obligations hereunder pursuant to this paragraph. In each case as specified in this Article 10, the Collateral Agent will, at the Borrower’s expense, execute and deliver to the applicable Obligor such documents as such Obligor may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted pursuant to the Loan Documents, or to release such Guarantor from its obligations hereunder, in each case in accordance with the terms of this Article 10. Anything contained in any of the Loan Documents to the contrary notwithstanding, the Borrower, the Administrative Agent, the Collateral Agent, each Lender and each other Secured Party hereby agree that no Secured Party (other than the Collateral Agent) shall have any right individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Collateral Agent, on behalf of the Secured Parties in accordance with the terms hereof and all powers, rights and remedies under the Collateral Documents may be exercised solely by the Collateral Agent. Any such release of Guaranteed Obligations or otherwise shall be deemed subject to the provision that such Guaranteed Obligations shall be reinstated if after such release any portion of any payment in respect of the Obligations guaranteed thereby shall be rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of Borrower or any Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Borrower or any Guarantor or any substantial part of its property, or otherwise, all as though such payment had not been made.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB each Agent is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, Agent on behalf of the Lenders and, where applicable, the Issuing BanksLenders. Each of the Lenders and each of the Issuing Banks hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms of the Credit Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. Any Lender serving as The Administrative Agent hereunder shall have is hereby expressly authorized by the same rights and powers in its capacity as a Lender as Lenders, without hereby limiting any other Lender and may exercise the same as though it were not such Agent, and such Lender and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party or any Affiliate thereof as if it were not such Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Credit Documents. Without limiting the generality of the foregoingimplied authority, (a) no Agent shall be subject to any fiduciary or receive on behalf of the Lenders all payments of principal of and interest on the Loans and all other implied dutiesamounts due to the Lenders hereunder, regardless and promptly to distribute to each Lender its proper share of whether a Default has occurred and is continuing, each payment so received; (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent is required to exercise in writing by the Required Lenders (or such other number or percentage give notice on behalf of each of the Lenders as shall be necessary under to the circumstances as provided Borrowers of any Event of Default specified in Section 10.02), this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) except to distribute to each Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as expressly set forth in the Credit Documents, no Agent shall have any duty to disclose, or be liable for the failure to disclose, any information relating to the Company or any Subsidiary that is communicated to or obtained received by the bank serving as Administrative Agent. Neither any Agent or nor any of its Affiliates in any capacity. No Agent directors, officers, employees or agents shall be liable as such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its his own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower or a Lender, and no such Agent shall 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 Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) or be required to ascertain or to make any inquiry concerning the performance or observance by any Borrower of any of the covenantsterms, 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 agreements. The Administrative Agent shall in any Credit Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit Document or any other agreement, instrument or documentall cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Credit Documentor, other than to confirm receipt of items 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. The Administrative Agent shall, in the absence of knowledge to be delivered to such Agent. Each Agent shall the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper PersonPerson or Persons. Each Neither the Agents nor any of their directors, officers, employees or agents shall have any responsibility to any Borrower on account of the failure of or delay in performance or breach by any 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 Agent, any other Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. The Administrative Agent also may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it in good faith with respect to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for any Credit Party), independent accountants and other experts selected by it, 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. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Such Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of Lenders hereby acknowledge that the preceding paragraphs and Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of Section 10.03 this Agreement unless it shall apply be requested in writing to any such sub-agent and to do so by the Related Parties of the Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraphbelow, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrowers. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withheld) to appoint from the Lenders 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksLenders, appoint from the Lenders a successor Administrative Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate affiliate of any such bank, which successor shall be acceptable to Infinity (such acceptance not to be unreasonably withheld). Upon the acceptance of its any appointment as Administrative Agent hereunder by a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Administrative Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After an the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section 10.03 9.5 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Administrative Agent. With respect to the Loans made by them hereunder, the Agents in their individual capacity and not as Agents shall have the same rights and powers as any other Lender and may exercise the same as though they were not Agents, and 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 of their respective Subsidiaries or any Affiliate thereof as if they were not Agents. Each Lender agrees (i) to reimburse the Administrative Agent in the amount of its pro rata share (based on its Total Facility Percentage or, after the date on which the Loans shall have been paid in full, based on its Total Facility Percentage immediately prior to such date) of any reasonable, out-of- pocket expenses incurred for the benefit of the Lenders by the Administrative Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by or on behalf of any Borrower and (ii) to indemnify and hold harmless the Administrative Agent and any of its directors, officers, employees or agents, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement, to the extent the same shall not have been reimbursed by or on behalf of Infinity; provided, that no Lender shall be liable to the Administrative Agent or any such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or wilful misconduct of the Administrative Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents 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 Credit Document, any related agreement or any document furnished hereunder or thereunder. None of Neither the institutions named as Documentation Agent, the Co-Syndication Agents or Documentation Agents in Agents, the heading of this Agreement shall, in their capacities as such, Arrangers nor any managing agent shall have any duties or responsibilities of any kind under this Agreementhereunder in its capacity as such.
Appears in 1 contract
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent and Collateral Agent as its agent and authorizes the Agents Administrative Agent and Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent and Collateral Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder, and without any duty to account therefor to the Lenders. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no the Administrative Agent shall not be subject to any fiduciary or other implied dutiesduties to any Lender, regardless of whether a Default or Event of Default has occurred and is continuing, (b) no 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 Credit Loan Documents that such 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 10.029.02), and (cd) except as expressly set forth in the Credit Loan Documents, no the Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to Holdings, the Company Borrower or any Subsidiary of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Holdings, the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents subagents appointed by such the Administrative Agent; provided, however, that the Loan Parties shall make all payments under any Loan Document directly to the Administrative Agent. Such The Administrative Agent and any such sub-agent 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 and the provisions of Section 10.03 shall apply to any such sub-agent subagent and to the Related Parties of the Agents each Administrative Agent and any such sub-agentsubagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)Borrower, the Company, which shall not be unreasonably withheld) to appoint a successorsuccessor 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksLenders, 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 an the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents 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 Agents or Administrative 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 Agents or Administrative 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 Credit Document, any Loan Document or related agreement or any document furnished hereunder or thereunder. None Each Lender irrevocably agrees that the Administrative Agent may enter into any and all documents with respect to Collateral and the rights of the institutions named Secured Parties with respect thereto (including the Intercreditor Agreement or any Pari Passu Intercreditor Agreement or Junior Lien Intercreditor Agreement, if applicable) as Syndication Agents or Documentation Agents contemplated by and in accordance with the heading provisions of this Agreement shalland the 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 their capacities this Agreement shall have any liability under this Agreement or any other Loan Document in its capacity as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
The Agents. In order to expedite 9.1 Appointment
(a) Each Lender hereby irrevocably appoints the transactions contemplated by this Agreement, JPMCB is hereby appointed to act entity named as Administrative Agent, Agent in the heading of this Agreement and JPMEL is hereby appointed its successors and assigns to act serve as London Agent, on behalf of the Lenders and, where applicable, administrative agent under the Issuing Banks. Each of the Lenders Loan Documents and each of the Lender and each Issuing Banks hereby irrevocably Lender authorizes the Agents 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 Agents by the terms of the Credit Documents, together with Administrative Agent under such actions agreements and to exercise such powers as are reasonably incidental thereto. Any Lender serving as Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not such Agent, and such Lender and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party or any Affiliate thereof as if it were not such Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Credit Documents. Without limiting the generality foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the foregoingLoan Documents to which the Administrative Agent is a party, (a) no and to exercise all rights, powers and remedies that the Administrative Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, may have under such Loan Documents.
(b) no As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent is not be required to exercise in writing by the Required Lenders (any discretion or such other number or percentage of the Lenders as take any action, but shall be necessary under the circumstances as provided in Section 10.02), required to act or to refrain from acting (and (c) except as expressly set forth in the Credit Documents, no Agent shall have any duty to disclose, or be liable for the failure to disclose, any information relating to the Company or any Subsidiary that is communicated to or obtained by the bank serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken fully protected in so acting or not taken by it with refraining from acting) upon the consent or at the request 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 in Section 10.02) or terms in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default Loan Documents), and, unless and until written notice thereof 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 (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives an indemnification and is given 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 by may seek clarification or direction from the Borrower AgentRequired Lenders (or, for matters that require consent of a Borrower greater or a Lenderdifferent 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 no 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 be responsible for or not have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Document, (iv) the validity, enforceability, effectiveness or genuineness of any 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 Credit Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for any Credit Party), independent accountants and other experts selected by itdisclose, and shall not be liable for the failure to disclose, any action taken information relating to the Borrower, any Subsidiary or not taken by it in accordance with the advice any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. 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 counselfunds 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, accountants 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 deemed to have assumed any obligation or experts. Each duty or any other relationship as the agent, fiduciary or trustee of or for any Lender, other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and/or the transactions contemplated hereby.
(d) Nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account.
(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 sub-agents appointed by such the Administrative Agent. Such The Administrative Agent and any such 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 and the provisions of Section 10.03 this Article shall apply to any such sub-agent and to the Related Parties of the Agents Administrative Agent and any such sub-agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in connection a final and nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the syndication 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, but all such persons shall have the benefit of the credit facilities indemnities provided for herein as well as activities as Agent. Subject hereunder.
(g) In case of the pendency of any proceeding with respect to the appointment and acceptance of a successor Agent as provided any Loan Party under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignationeffect, the Administrative Agent, or, if 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 resigned, made any demand on the Required Lenders, Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: 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 right (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withheld) to appoint a successor. If no successor shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf claims of the Lenders and the Issuing BanksAdministrative Agent (including any claim under Sections 2.12, appoint a successor 2.13, 2.15, 2.17 and 9.3) allowed in such judicial proceeding; and to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender and each other Secured Party to make such payments to the Administrative Agent which and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders or the other Secured Parties, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.3). Nothing contained herein shall be a bank with an office deemed to authorize the Administrative Agent 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 Obligations or the rights of any Lender or Issuing Lender or to authorize the Administrative Agent to vote in New Yorkrespect of the claim of any Lender or Issuing Lender in any such proceeding.
(h) The provisions of this Article are solely for the benefit of the Administrative Agent, New Yorkthe Lenders and the Issuing Lenders, and, except solely to the extent of the Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Article, none of the Borrower or any Subsidiary, or an Affiliate any of their respective Affiliates, shall have any rights as a third party beneficiary under any such bankprovisions. Upon the Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties benefits of the retiring AgentCollateral and of the Guarantees of the Obligations provided under the Loan Documents, and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, to have agreed to the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this AgreementArticle.
Appears in 1 contract
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks Bank hereby irrevocably appoints (i) JPMorgan Chase Bank, N.A. as Administrative Agent, (ii) JPMorgan Chase Bank, N.A. as Collateral Agent, and (iii) Xxxxx Fargo Bank, N.A., as Documentation Agent, (the Administrative Agent, the Collateral Agent and the Documentation Agent, for purposes of this Article being referred to individually as an "Agent" and collectively as the "Agents"), and authorizes the Agents to take such actions on its behalf and to exercise such powers as are delegated to the Agents such Agent by the terms of this Agreement or by the Credit terms of any other Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Notwithstanding the foregoing, the Documentation Agent shall undertake such responsibilities with respect to the credits extended under this Agreement as agreed to from time to time between the Administrative Agent and the Documentation Agent. The Documentation Agent shall not have any other right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to each Lender as a lender. 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 such an Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party or any Subsidiary or other Affiliate thereof as if it were not such Agent hereunderan Agent. The None of the Agents shall not have any duties or obligations except those expressly set forth herein or in the Credit other Loan Documents. Without limiting the generality of the foregoing, (a) no Agent the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the Credit other Loan Documents that such Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02), and (c) except as expressly set forth in the Credit Documentsherein, no Agent shall have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the Company any Credit Party or any Subsidiary of its Subsidiaries that is communicated to or obtained by the bank serving as such Agent or any of its Affiliates in any capacity; provided, however, that Agents shall give Lenders immediate written notice of any action taken or notice received or given by any of them pursuant to the Intercreditor Agreement. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower Borrowers or a Lender, and no such Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any Credit other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewithherewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Documentherein or therein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any Credit other Loan Document or any other agreement, instrument or document, . The Administrative Agent shall not be responsible for or (v) have any duty to ascertain or inquire into the satisfaction of any condition set forth in Article IV or elsewhere in any Credit Documentherein, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for any Credit Party), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agentit including, without limitation, its duties, rights and powers under any Loan Documents in respect of the Collateral or any portion thereof. Such Each Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Agent. Subject to the foregoing, each Agent (including but not limited to the Administrative Agent) acting under or in respect of the Collateral, shall act for the ratable benefit of the Lenders and the Issuing Bank as appropriate hereunder (unless otherwise provided herein or in any other Loan Documents) and shall be entitled to the exculpations, privileges, indemnities and other protections provided for the benefit of the Agent herein or therein. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrowers. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)Borrowers, the Company, which shall not 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 Agent gives notice of its resignation, then the retiring Agent may (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksBank, appoint a successor 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 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 Agent, and the retiring Agent shall be discharged from its duties and obligations hereunderas such. The fees payable by the Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an any Agent’s resignation hereunder's resignation, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Credit Loan Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Agents as its agents and authorizes the Agents to take such actions on its behalf and to exercise such powers as are delegated to the Agents by the terms of the Credit Documentshereof, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Credit Documentsherein. Without limiting the generality of the foregoing, foregoing (a) no Agent the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, and (b) no Agent the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent is required permitted hereunder unless requested to exercise do so in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Credit Documents, no Agent shall have any duty to disclose, or be liable for the failure to disclose, any information relating to the Company or any Subsidiary that is communicated to or obtained by the bank serving as Agent or any of its Affiliates in any capacityLenders. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent In addition, the Agents shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Documentthis Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Documentherein, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Documentherein, other than to confirm receipt of items expressly required to be delivered to such Agentthe Agents. Each Agent The 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 in good faith 43 39 to be genuine and to have been signed or sent by the proper Person. Each Agent The Agents 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. Each Agent of the Agents may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent of the Agents may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Such The Administrative Agent, the CAF Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related PartiesAffiliates or its or its Affiliates' employees. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent, to the Affiliates of the Administrative Agent, the CAF Agent and any such sub-agent and to the Related Parties directors, officers, employees, agents and advisors of the Agents and Administrative Agent, the CAF Agent, any such sub-agent, agent and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as AgentAffiliates. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, any either Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, shall have the right (in consultation with, and with the consent of the Borrower (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withheld) shall have the right to appoint a successorsuccessor Agent. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may (in consultation withmay, and with the consent of the Borrower (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withhold such consent and which shallwithheld), if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Agent which shall be a bank with an office in The City of 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 its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After an the Agent’s 's resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Agent. Each Lender agrees (a) to reimburse the Agents, on demand, in the amount of its pro rata share at the time reimbursement is sought (based on its Commitment hereunder or, if the Commitments shall have expired or terminated, based on its portion of the total Revolving Credit Exposures and outstanding Competitive Loans) of any expenses incurred for the benefit of the Lenders by the Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Borrower and (b) 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 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 action taken or omitted by it or any of them under this Agreement, to the extent the same shall not have been reimbursed by the Borrower, provided that no Lender shall be liable to any Agent or any such other indemnified person for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are determined by a court of competent jurisdiction by final and nonappealable judgment to have 44 40 resulted from the gross negligence or wilful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Belo a H Corp)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Documentshereof, together with such actions and powers as are reasonably incidental thereto. Any Lender Except with respect to the consent rights of the Borrower relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders, and the Borrower shall not have rights as a third party beneficiary of any of such provisions. 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Documentsherein. Without limiting the generality of the foregoing, (a) no 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) no 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 hereby that the Credit Documents that such Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02), and (c) except as expressly set forth in herein, the Credit Documents, no Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any Subsidiary of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Documentthis Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in herein or the occurrence of any Credit DocumentDefault, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Documentherein, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such the Administrative Agent. Such The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 this Article shall apply to any such sub-agent and to the Related Parties of the Agents Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (in consultation withright, and with the consent of the Borrower (unless an Event of Default has occurred and is continuing pursuant not to clause (g) be unreasonably withheld or (h) of Section 7.01delayed), the Company, which shall not 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 (in consultation withmay, and on behalf of the Lenders, appoint, with the consent of the Borrower (unless an Event of Default has occurred and is continuing pursuant not to clause (g) be unreasonably withheld or (h) of Section 7.01delayed), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing 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; provided that if the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and (b) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly until such time as the Required Lenders appoint, with the consent of the Borrower (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all 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 an the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 Credit Document, any related agreement or any document furnished hereunder or thereunder. None of It is agreed that the institutions named as Syndication Agents or Agent, the Co-Documentation Agents in and the heading of this Agreement Joint Lead Arrangers shall, in their capacities as such, have any no duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, 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, where applicable, the Issuing Banks. (a) Each of the Lenders and each of the Issuing Banks Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder. .
(c) The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no the duties of the Administrative Agent shall be subject to mechanical and administrative in nature; the Administrative Agent shall not have by reason of this Agreement or any other Loan Document a fiduciary relationship or other implied dutiesduties in respect of any Lender, regardless of whether a Default has occurred and is continuing, (b) no 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 Credit Loan Documents that such 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 10.029.02), and (c) except as expressly set forth in the Credit Loan Documents, no the Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to Holdings, the Company Borrower or any Subsidiary of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.029.02) or in the absence of its own gross negligence or wilful misconductwillful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision). No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Holdings, the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each .
(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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each 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 sub-agents appointed by such the Administrative Agent. Such The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents each Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. .
(i) Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying upon 15 days’ prior notice to the Lenders, the Issuing Banks 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 CompanySwingline 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 Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (in consultation with, and with to appoint a successor which successor Administrative Agent shall be consented to by the consent Borrower at all times other than during the existence of (unless an Event of Default has occurred and is continuing pursuant to clause (gunder Section 7.01(h) or (h) of Section 7.01i), the Company, which shall not 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 15 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksBank, 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 an the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent.
(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 Agents or any other Lender Administrative 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 Agents 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 other Credit Documentduty or responsibility, either initially or on a continuing basis, to provide any related agreement Lender or the holder of any document furnished hereunder or thereunder. None promissory note in respect of the institutions named as Syndication Agents Obligations with any credit or Documentation Agents 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 heading 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 shallor any other Loan Document or the financial condition of Holdings or any of its Subsidiaries or 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 their capacities this Agreement as suchthe Syndication Agents and 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, neither any Syndication Agent nor the Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender.
(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 as, and to the extent, provided for under Section 9.03. Without limitation of the foregoing, each Arranger shall not, solely by reason of this Agreement or any other Loan Documents, have any duties or responsibilities fiduciary relationship in respect of any kind under this AgreementLender or any other Person.
Appears in 1 contract
The Agents. 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, where applicable, the Issuing BanksSECTION 8.1. Each of the Lenders and each of the Issuing Banks Bank hereby irrevocably appoints the Administrative Agent, the Documentation Agent and the Syndication Agents as its 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 Credit Documentshereof, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such the Administrative Agent, the Documentation Agent or the Syndication Agents, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Company or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent, the Documentation Agent or the Syndication Agents hereunder. The Agents 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 Credit Documentsherein. Without limiting the generality of the foregoing, (a) no 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) no 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 hereby that the Credit Documents that such Administrative Agent, the Documentation Agent or a Syndication Agent, as the case may be, is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.2), and (c) except as expressly set forth in herein, the Credit DocumentsAdministrative Agent, no the Documentation Agent or the Syndication Agents, as the case may be, shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the Company or any Subsidiary of 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. No 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 10.029.2) or in the absence of its own gross negligence or wilful willful misconduct. No 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 such the Administrative Agent by the Borrower Agent, a Borrower Borrowers or a Lender, and no such 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 Credit Documentthis Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Documentherein, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Documentherein, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each 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 in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. Each 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 any Credit Partythe 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. Each 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 sub-agents appointed by such the Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be. Such The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, and any such sub-agentagent 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. 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, any (a) the Administrative Agent, the Documentation Agent or a Syndication Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyCompany 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, the Administrative Agent, or, if the Administrative Agent shall have resignedresignation or removal, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of Company (unless an so long as no Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01continuing), the Company, which shall not 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, 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 (in consultation withbe, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)may, the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksBank, 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 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 Company and such successor. After an 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 10.03 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 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 Agents 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 Agents 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 Credit Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Documentshereof, together with such actions and powers as are reasonably incidental thereto. Any Lender Except with respect to the consent rights of the Borrower relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders, and the Borrower shall not have rights as a third party beneficiary of any of such provisions. 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Documentsherein. Without limiting the generality of the foregoing, (a) no 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) no 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 hereby that the Credit Documents that such Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02), and (c) except as expressly set forth in herein, the Credit Documents, no Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any Subsidiary of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.029.02) or in the absence of its own gross negligence or wilful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Documentthis Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in herein or the occurrence of any Credit DocumentDefault, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Documentherein, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such the Administrative Agent. Such The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 this Article shall apply to any such sub-agent and to the Related Parties of the Agents Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (in consultation withright, and with the consent of the Borrower (unless an Event of Default has occurred and is continuing pursuant not to clause (g) be unreasonably withheld or (h) of Section 7.01delayed), the Company, which shall not 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 (in consultation withmay, and on behalf of the Lenders, appoint, with the consent of the Borrower (unless an Event of Default has occurred and is continuing pursuant not to clause (g) be unreasonably withheld or (h) of Section 7.01delayed), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing 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; provided that if the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and (b) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly until such time as the Required Lenders appoint, with the consent of the Borrower (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all 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 an the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 Credit Document, any related agreement or any document furnished hereunder or thereunder. None of It is agreed that the institutions named as Syndication Agents or Agent, the Co-Documentation Agents in and the heading of this Agreement Joint Lead Arrangers shall, in their capacities as such, have any no duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks Bank hereby irrevocably appoints (i) the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Senior Loan Documents, together with such actions and powers as are reasonably incidental thereto and (ii) the Collateral Agent as its agent and authorizes the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms of the Senior Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender The financial institutions serving as Agent the 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 such an Agent, and such Lender financial institutions and its their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Credit Party Subsidiary or any Affiliate thereof of any of the foregoing as if it they were not such Agent Agents hereunder. The Agents No Agent shall not have any duties or obligations except those expressly set forth in the Credit Senior Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Senior Loan Documents that such Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), 2.20 or 9.02) and (c) except as expressly set forth in the Credit Senior Loan Documents, no Agent shall have any duty to disclose, or and no Agent shall be liable for the failure to disclose, any information relating to the Company Borrower or any Subsidiary of the Subsidiaries that is communicated to or obtained by the bank financial institution serving as such Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.022.20 or 9.02) or in the absence of its own gross negligence or wilful misconductmisconduct (as determined by a court of competent jurisdiction by final and non-appealable judgment). No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower or a Lender, as applicable, and no such Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Credit Senior Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Senior Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit Senior 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 Credit Senior Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. Each Any Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all of its duties and exercise any and all of its rights and powers by or through any one or more sub-agents appointed by such Agent. Such Any Agent and any such sub-agent may perform any and all of its duties and exercise any and all of its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents any Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)Borrower, the Company, which shall not 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 Agent gives notice of its resignation, then the retiring Agent may (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing Banks, appoint a successor Agent (which shall be a bank financial institution with an office in New York, New York, or an Affiliate of any such bankfinancial institution). Upon the acceptance of its appointment as 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 Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After an Agent’s 's resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any Senior Loan Document or related agreement or any document furnished hereunder or thereunder. None of Each party hereto authorizes the institutions named as Syndication Agents or Documentation Agents Administrative Agent to enter into customary intercreditor agreements in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind connection with Securitizations and Factoring Transactions permitted under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Rite Aid Corp)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and hereby irrevocably appoints each of the Issuing Banks hereby irrevocably 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 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 Agents such Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 Agreement and the Security Documents. 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 such an Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Loan Party or any Affiliate thereof of their respective Affiliates as if it were not such an Agent hereunder. The Agents No Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Loan Documents that 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 10.029.08), and (c) except as expressly set forth in the Credit Loan Documents, no Agent shall have any duty to disclose, or nor shall it be liable for the failure to disclose, any information relating to any of the Company Loan Parties or any Subsidiary 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. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.08) or in the absence of its own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower or a Lender, and no such Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper Personperson. Each Agent may also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be have been made by the proper Personperson, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agentit. Such Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any each Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (in consultation withright, and with the consent (not to be unreasonably withheld or delayed) of (unless the Borrower, to appoint a successor; provided that during the existence and continuance of an Event of Default has occurred and is continuing pursuant to clause (g) or (h) no such consent of Section 7.01), the Company, which Borrower shall not be unreasonably withheld) to appoint a successorrequired. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksLenders, appoint a successor 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 Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After an Agent’s resignation hereunder, the provisions of this Article and Section 10.03 9.05 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. In addition, notwithstanding the effectiveness of a resignation by the Administrative Agent hereunder, (a) the retiring Administrative Agent may, 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. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Credit Loan Document, any related agreement or any document furnished hereunder or thereunder. None of To the institutions named as Syndication Agents extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax. If the Internal Revenue Service or Documentation Agents in any other Governmental Authority asserts a claim that the heading of this Agreement shall, in their capacities as such, have any duties Administrative Agent did not properly withhold tax from amounts paid to or responsibilities for the account of any kind under this AgreementLender because the appropriate form was not delivered or was not properly executed or because such Lender failed to notify the Administrative Agent of a change in circumstance which rendered the exemption from, or reduction in, withholding tax ineffective or for any other reason, such Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including any penalties or interest and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred.
Appears in 1 contract
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Documentshereof, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such an Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party Company or any Affiliate thereof as if it were not such an Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Documentsherein. Without limiting the generality of the foregoing, (a) no 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) no 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 hereby that the Credit Documents that such Administrative Agent is required to exercise in writing 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 10.02Lenders), and (c) except as expressly set forth in herein, the Credit Documents, no Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the any Company or any Subsidiary that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.02Lenders) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Borrower Agent, a any Borrower or a Lender, and no such the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder under any Credit Document or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any the Credit Document, (iv) the validity, enforceability, effectiveness or genuineness of any 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 Credit Documentherein, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the a proper Person. Each An initial list of the proper 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 in good faith to be made by the proper Person, and shall not incur any liability for relying thereonthereon 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). Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such the Administrative Agent. Such The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrowers. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Borrowers, to appoint a successor which, so long as no Event of Default has occurred and is continuing pursuant continuing, shall be reasonably acceptable to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withheld) to appoint a successorBorrowers. 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksLenders, 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 Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them 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 Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as The Co-Syndication Agents or and Co-Documentation Agents in the heading of this Agreement shall, in their capacities as such, shall not have any duties or responsibilities of any kind under this Agreementhereunder in their capacity as such.
Appears in 1 contract
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and hereby irrevocably appoints each of the Issuing Banks hereby irrevocably 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 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 Agents such Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 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 or the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not such 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 Person serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and, if applicable, such Lender Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Affiliate thereof Subsidiary or any of their respective Affiliates as if it were not such an Agent hereunder. The Agents No Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Loan Documents that 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 10.029.08), and (c) except as expressly set forth in the Credit Loan Documents, no Agent shall have any duty to disclose, or nor shall it be liable for the failure to disclose, any information relating to the Company Borrower or any Subsidiary 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 the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as an Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary or as such Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section 10.02Sections 9.08 and Article VII) or in the absence of its own (or its Related Parties’) gross negligence negligence, bad faith or wilful misconductwillful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower or a Lender, and no such Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it in good faith to be genuine and to have been signed signed, sent or sent otherwise authenticated by the proper Person. Each Agent may also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan 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 any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each 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 such Agentit (other than a Disqualified Institution). Such Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective Related PartiesParties (other than a Disqualified Institution). The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents each Agent in such capacity and any such 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 Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any each Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (in consultation withright, and with the consent (not to be unreasonably withheld or delayed) of (unless the Borrower, to appoint a successor; provided that during the existence and continuance of an Event of Default has occurred and is continuing pursuant to clause (g) or (h) no such consent of Section 7.01), the Company, which Borrower shall not be unreasonably withheld) to appoint a successorrequired. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignationresignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Agent may (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01but shall not be obligated to), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Agent which 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 bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successorsuccessor has been appointed, such successor resignation shall succeed to and become vested effective in accordance with all such notice on the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunderResignation Effective Date. After an Agent’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.9.05
Appears in 1 contract
Samples: Second Lien Credit Agreement (Affirmative Insurance Holdings Inc)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Agents as its agents and authorizes the Agents to take such actions on its behalf and to exercise such powers as are delegated to the Agents by the terms of the Credit Documentshereof, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Credit Documentsherein. Without limiting the generality of the foregoing, foregoing (a) no Agent the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, and (b) no Agent the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent is required permitted hereunder unless requested to exercise do so in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Credit Documents, no Agent shall have any duty to disclose, or be liable for the failure to disclose, any information relating to the Company or any Subsidiary that is communicated to or obtained by the bank serving as Agent or any of its Affiliates in any capacityLenders. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent In addition, the Agents shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Documentthis Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Documentherein, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Documentherein, other than to confirm receipt of items expressly required to be delivered to such Agentthe Agents. Each Agent The 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each Agent The Agents 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. Each Agent of the Agents may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent of the Agents may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Such The Administrative Agent, the CAF Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related PartiesAffiliates or its or its Affiliates' employees. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent, to the Affiliates of the Administrative Agent, the CAF Agent and any such sub-agent and to the Related Parties directors, officers, employees, agents and advisors of the Agents and Administrative Agent, the CAF Agent, any such sub-agent, agent and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as AgentAffiliates. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, any either Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, shall have the right (in consultation with, and with the consent of the Borrower (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withheld) shall have the right to appoint a successorsuccessor Agent 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 Agent gives notice of its resignation, then the retiring Agent may (in consultation withmay, and with the consent of the Borrower (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withhold such consent and which shallwithheld), if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Agent from among the Lenders which shall be a bank with an office in The City of 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 its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After an the Agent’s 's resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Agent. Each Lender agrees (a) to reimburse the Agents, on demand, in the amount of its pro rata share at the time reimbursement is sought (based on its Commitment hereunder or, if the Commitments shall have expired or terminated, based on its portion of the total Revolving Credit Exposures and outstanding Competitive Loans) of any expenses incurred for the benefit of the Lenders by the Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Borrower and (b) 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 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 action taken or omitted by it or any of them under this Agreement, to the extent the same shall not have been reimbursed by the Borrower, provided that no Lender shall be liable to any Agent or any such other indemnified person for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or wilful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Co-Syndication Agents Agents, Documentation Agent or Documentation Senior Managing Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Belo Corp)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no 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) no 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 Credit Loan Documents that such 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 10.022.05(j) and Section 9.02), and (c) except as expressly set forth in the Credit Loan Documents, no the Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to Holdings, the Company Borrower or any Subsidiary of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Holdings, the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents subagents appointed by such the Administrative Agent. Such The Administrative Agent and any such sub-agent 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 and the provisions of Section 10.03 shall apply to any such sub-agent subagent and to the Related Parties of the Agents each Administrative Agent and any such sub-agentsubagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)Borrower, the Company, which shall not 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksBank, 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 an the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents 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 Agents 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 Agents 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 Credit Document, any Loan Document or related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents The Lenders identified in the heading of this Agreement shall, in their capacities as such, the Syndication Agent and the Documentation Agent shall not have any duties right, power, obligation, liability, responsibility or responsibilities of any kind duty under this AgreementAgreement other than those applicable to all Lenders. Without limiting the foregoing, neither the Syndication Agent nor the Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender.
Appears in 1 contract
Samples: Credit Agreement (Select Specialty Hospital Topeka Inc)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks Bank hereby irrevocably appoints (i) the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Senior Loan Documents, together with such actions and powers as are reasonably incidental thereto and (ii) the Collateral Agent as its agent and authorizes the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms of the Senior Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender The financial institutions serving as Agent the 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 such an Agent, and such Lender financial institutions and its their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Credit Party Subsidiary or any Affiliate thereof of any of the foregoing as if it they were not such Agent Agents hereunder. The Agents No Agent shall not have any duties or obligations except those expressly set forth in the Credit Senior Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Senior Loan Documents that such Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), 2.20 or 9.02) and (c) except as expressly set forth in the Credit Senior Loan Documents, no Agent shall have any duty to disclose, or and no Agent shall be liable for the failure to disclose, any information relating to the Company Borrower or any Subsidiary of the Subsidiaries that is communicated to or obtained by the bank financial institution serving as such Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.022.20 or 9.02) or in the absence of its own gross negligence or wilful misconductmisconduct (as determined by a court of competent jurisdiction by final and non-appealable judgment). No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower or a Lender, as applicable, and no such Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Credit Senior Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Senior Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit Senior 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 Credit Senior Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. Each Any Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all of its duties and exercise any and all of its rights and powers by or through any one or more sub-agents appointed by such Agent. Such Any Agent and any such sub-agent may perform any and all of its duties and exercise any and all of its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents any Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)Borrower, the Company, which shall not 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 Agent gives notice of its resignation, then the retiring Agent may (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing Banks, appoint a successor Agent (which shall be a bank financial institution with an office in New York, New York, or an Affiliate of any such bankfinancial institution). Upon the acceptance of its appointment as 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 Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After an Agent’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any Senior Loan Document or related agreement or any document furnished hereunder or thereunder. None of Each party hereto authorizes the institutions named as Syndication Agents or Documentation Agents Administrative Agent to enter into customary intercreditor agreements in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind connection with Securitizations and Factoring Transactions permitted under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Rite Aid Corp)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB each Agent is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, Agent on behalf of the Lenders and, where applicable, the Issuing BanksLenders. Each of the Lenders and each of the Issuing Banks hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms of the Credit Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. Any Lender serving as The Administrative Agent hereunder shall have is hereby expressly authorized by the same rights and powers in its capacity as a Lender as Lenders, without hereby limiting any other Lender and may exercise the same as though it were not such Agent, and such Lender and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party or any Affiliate thereof as if it were not such Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Credit Documents. Without limiting the generality of the foregoing, implied authority (a) no Agent shall be subject to any fiduciary or receive on behalf of the Lenders all payments of principal of and interest on the Loans and all other implied dutiesamounts due to the Lenders hereunder, regardless and promptly to distribute to each Lender its proper share of whether a Default has occurred and is continuingeach payment so received, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent is required to exercise in writing by the Required Lenders (or such other number or percentage give notice on behalf of each of the Lenders as shall be necessary under to the circumstances as provided Borrowers of any Event of Default specified in Section 10.02), this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder and (c) except to distribute to each Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as expressly set forth in the Credit Documents, no Agent shall have any duty to disclose, or be liable for the failure to disclose, any information relating to the Company or any Subsidiary that is communicated to or obtained received by the bank serving as Administrative Agent. Neither any Agent or nor any of its Affiliates in any capacity. No Agent directors, officers, employees or agents shall be liable as such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its his own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower or a Lender, and no such Agent shall 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 Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) or be required to ascertain or to make any inquiry concerning the performance or observance by any Borrower of any of the covenantsterms, 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 agreements. The Administrative Agent shall in any Credit Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit Document or any other agreement, instrument or documentall cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Credit Documentor, other than to confirm receipt of items 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. The Administrative Agent shall, in the absence of knowledge to be delivered to such Agent. Each Agent shall the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper PersonPerson or Persons. Each Neither the Agents nor any of their directors, officers, employees or agents shall have any responsibility to any Borrower on account of the failure of or delay in performance or breach by any 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 Agent, any other Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. The Administrative Agent also may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it in good faith with respect to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for any Credit Party), independent accountants and other experts selected by it, 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. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Such Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of Lenders hereby acknowledge that the preceding paragraphs and Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of Section 10.03 this Agreement unless it shall apply be requested in writing to any such sub-agent and to do so by the Related Parties of the Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraphbelow, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrowers. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withheld) to appoint from the Lenders 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksLenders, appoint from the Lenders a successor Administrative Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate affiliate of any such bank, which successor shall be acceptable to Viacom (such acceptance not to be unreasonably withheld). Upon the acceptance of its any appointment as Administrative Agent hereunder by a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Administrative Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After an the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section 10.03 9.5 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Administrative Agent. With respect to the Loans made by them hereunder, the Agents in their individual capacity and not as Agents shall have the same rights and powers as any other Lender and may exercise the same as though they were not Agents, and 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 of their respective Subsidiaries or any Affiliate thereof as if they were not Agents. Each Lender agrees (i) to reimburse the Administrative Agent in the amount of its pro rata share (based on its Total Facility Percentage or, after the date on which the Loans shall have been paid in full, based on its Total Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders by the Administrative Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by or on behalf of any Borrower and (ii) to indemnify and hold harmless the Administrative Agent and any of its directors, officers, employees or agents, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement, to the extent the same shall not have been reimbursed by or on behalf of Viacom; provided, that no Lender shall be liable to the Administrative Agent or any such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of the Administrative Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents 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 Credit Document, any related agreement or any document furnished hereunder or thereunder. None of Neither the institutions named as Syndication Agents or Agent, the Co-Documentation Agents in Agents, the heading of this Agreement shall, in their capacities as such, Joint Lead Arrangers nor any managing agent shall have any duties or responsibilities of any kind under this Agreementhereunder in its capacity as such.
Appears in 1 contract
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints Chase and Citibank as its agent hereunder and under the other Loan Documents and authorizes the Agents 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 of the Credit Documentshereof or thereof, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 IX shall apply to the Collateral Agent and the Paying Agent mutatis mutandis. The Persons serving as Agent the Administrative 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 such Agentthe Administrative Agents, and such Lender Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such Agent the Administrative Agents hereunder. The Administrative Agents shall not have any duties or obligations except those expressly set forth herein and in the Credit other Loan Documents. Without limiting the generality of the foregoing, (a) no Agent the Administrative Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent the Administrative 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 Credit other Loan Documents that such Agent is the Administrative Agents are required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02)Lenders, and (c) except as expressly set forth herein and in the Credit other Loan Documents, no Agent the Administrative Agents shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any Subsidiary of its Subsidiaries that is communicated to or obtained by the bank serving as Agent Administrative Agents or any of its Affiliates in any capacity. No Agent The Administrative 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 10.02) or in the absence of its own gross negligence or wilful willful misconduct. No Agent The Administrative Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent the Administrative Agents by the Borrower Agent, a Borrower or a Lender, and no such Agent the Administrative Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any Credit other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewithherewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Documentherein or therein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any Credit 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 Credit Documentherein or therein, other than to confirm receipt of items expressly required to be delivered to such Agentthe Administrative Agents. Each Agent The Administrative Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper Person. Each Agent The Administrative Agents 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. Each Agent The Administrative Agents may consult with legal counsel (who may be counsel for any Credit Partyan Obligor, Member or the 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. Each Agent The Administrative Agents may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agentthe Administrative Agents. Such Agent The Administrative Agents and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Administrative Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as AgentAdministrative Agents. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Each Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)Borrower, the Company, which shall not 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 Agent may Administrative Agent's resignation shall nonetheless become effective and (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g1) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring LOAN AGREEMENT Administrative Agent shall so request, designate be discharged from its duties and approve a successor Agentobligations hereunder and (2) on behalf 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 Banks, appoint a successor 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 bankthis 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 Agent, (or retired) Administrative Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunderhereunder (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 an the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 Credit Document, Loan Document or any related agreement or any document furnished hereunder or thereunder. None Except as otherwise provided in Section 10.02(b) with respect to this Agreement, the Administrative Agent and the Collateral Agent may, with the prior consent of the institutions named Required Lenders (but not otherwise), consent to any modification, supplement or waiver under any of the Loan Documents to which it is a party; provided that, without the prior consent of each Lender, (a) the Collateral Agent shall not (except as Syndication Agents provided herein or Documentation Agents in the heading Security Documents) release any collateral or otherwise terminate any Lien under any Security Document providing for collateral security, 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 this Agreement shallthe other obligations secured by such Security Document, in their capacities as suchwhich event the Collateral Agent may consent to such junior Lien provided that it obtains the 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 Collateral Agent is hereby authorized, to release any Lien covering property that is the subject of either a disposition of property permitted hereunder or a disposition to which the Required Lenders have any duties or responsibilities of any kind under this Agreementconsented.
Appears in 1 contract
Samples: Loan Agreement (NRG Energy Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB is the Persons named in the heading of this Agreement are hereby appointed to act as Administrative Agent, London Agent and JPMEL is hereby appointed to act as London Agent, Tokyo Agent on behalf of the Lenders and, where applicable, and the Issuing BanksBank. Each of the Lenders Lenders, each assignee of any Lender and each of the Issuing Banks Bank hereby irrevocably authorizes the Agents to take such actions on its behalf of such Lender or assignee or the Issuing Bank and to exercise such powers as are delegated to the Agents by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any The Administrative Agent and, to the extent expressly provided herein, the other Agents are hereby expressly authorized by the Lenders and the Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing Bank 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 serving 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 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, the Administrative Agent is hereby expressly authorized to release any Subsidiary Guarantor from its obligations under the Subsidiary Guarantee Agreement in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person other than the Company or an Affiliate of the Company in a transaction permitted by Section 6.04. With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as Agent 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 such an Agent, and such Lender the Agents and its their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Company or any Subsidiary or other Affiliate thereof as if it were not such Agent hereunderan Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Loan Documents that such Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.0211.02), and (c) except as expressly set forth in the Credit Loan Documents, no Agent shall have any duty to disclose, or and no Agent shall be liable for the failure to disclose, any information relating to the Company or any Subsidiary of its Subsidiaries that is communicated to or obtained by the bank institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.0211.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower or a (in which case such Agent shall give written notice to each other Lender), and no such Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewithherewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Documentherein or therein, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for any Credit PartyBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Such Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the Company. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not 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 Agent gives notice of its resignation, then the retiring Agent may (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksBank, appoint a successor 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 Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After an the Agent’s resignation hereunder, the provisions of this Article and Section 10.03 11.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any Loan Document or related agreement or any document furnished hereunder or thereunder. None of Each Lender hereby acknowledges that the institutions named as Syndication Agents or Agent and each Documentation Agents in the heading of this Agreement shallAgent has no rights, in their capacities as such, have any duties or responsibilities of any kind under this Agreementliability hereunder other than in its capacity as a Lender.
Appears in 1 contract
Samples: Five Year Credit Agreement (Edwards Lifesciences Corp)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender Person serving as 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 such the Administrative Agent, and such Lender Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no 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) no 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 Credit Loan Documents that such the Administrative Agent is required to exercise in writing by the Required Requisite Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), 9.02 hereof or Article VIII of the Collateral Agency Agreement) and (c) except as expressly set forth in the Credit Loan Documents, no the Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to any of the Company or any Subsidiary Loan Parties that is communicated to or obtained by the bank Person serving as Administrative Agent or any of its Affiliates in any capacity. No Notwithstanding the foregoing, the Lenders acknowledge that the Loan Documents provide for the exercise of discretionary rights and powers by the Administrative Agent under the circumstances expressly set forth in the Loan Documents. 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 Requisite Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02) or in the absence of its own gross negligence or wilful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent it by the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth (or incorporated by reference) in Article IV or elsewhere in any Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for any Credit Party), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Such Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, shall have the right (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withheld) to appoint a successor. If no successor shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.be
Appears in 1 contract
Samples: Credit Agreement (Velocom Inc)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no 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) no 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 Credit Loan Documents that such 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 10.022.05(j) and Section 9.02), and (c) except as expressly set forth in the Credit Loan Documents, no the Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to Holdings, the Company Borrower or any Subsidiary of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.022.05(j) or Section 9.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Holdings, the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents subagents appointed by such the Administrative Agent. Such The Administrative Agent and any such sub-agent 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 and the provisions of Section 10.03 shall apply to any such sub-agent subagent and to the Related Parties of the Agents each Administrative Agent and any such sub-sub- agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject 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 appointment Lenders and acceptance 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 successor 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 as provided 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 this paragraphthe 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 Banks Bank and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)Borrower, the Company, which shall not 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksBank, 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 Bor- rower 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 an the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents 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 Agents 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 Agents 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 Credit Document, any Loan Document or related agreement or any document furnished hereunder or thereunder. None of The Lenders identified in this Agreement as the institutions named as Syndication Agents or Agent and the Documentation Agents in the heading of shall not have any right, power, obligation, liability, responsibility or duty under this Agreement shallother than those applicable to all Lenders. Without limiting the foregoing, in their capacities as such, neither the Syndication Agent nor the Documentation Agents shall have or be deemed to have a fiduciary relationship with any duties or responsibilities of any kind under this AgreementLender.
Appears in 1 contract
Samples: Credit Agreement (United Surgical Partners International Inc)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no 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) no 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 Credit Loan Documents that such 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 10.022.05(j) and Section 9.02), and (c) except as expressly set forth in the Credit Loan Documents, no the Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to Holdings, Intermediate Holdings the Company Borrower or any Subsidiary of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.022.05(j) and Section 9.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall not be deemed to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Intermediate Holdings, the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such the Administrative Agent. Such The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents each Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of Borrower (unless an Event of except if a Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01continuing), the Company, which shall not 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksBank, 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 an the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 Credit Document, any Loan Document or related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents The Lenders identified in the heading of this Agreement shall, in their capacities as such, the Syndication Agent and the Documentation Agent shall not have any duties right, power, obligation, liability, responsibility or responsibilities of any kind duty under this AgreementAgreement other than those applicable to all Lenders. Without limiting the foregoing, neither the Syndication Agent nor the Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender.
Appears in 1 contract
Samples: Credit Agreement (Wix Filtration Media Specialists, Inc.)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agents and the Paying Agent, if any, as its agents or agent, as the case may be, and authorizes the Administrative Agents and the Paying Agent, if any, to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agents and the Paying Agent, if any, by the terms of the Credit Documentshereof, together with such actions and powers as are reasonably incidental thereto. Any Lender Each party 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 such an Agent, and such Lender party and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party Borrower or any Affiliate thereof as if it were not such an Agent hereunder. The Administrative Agents and the Paying Agent, if any, shall not have any duties or obligations except those expressly set forth in the Credit Documentsherein. Without limiting the generality of the foregoing, (a) no Agent the Administrative Agents and the Paying Agent, if any, shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent the Administrative Agents and the Paying Agent, if any, shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by hereby that the Credit Documents that such Agent is Administrative Agents and the Paying Agent, if any, are required to exercise in writing 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 10.02Lenders), and (c) except as expressly set forth in herein, the Credit DocumentsAdministrative Agents and the Paying Agent, no Agent if any, shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the Company any of Borrower or any Subsidiary its Subsidiaries that is communicated to or obtained by the bank banks serving as Agent Administrative Agents and the Paying Agent, if any, or any of its their Affiliates in any capacity. No Agent The Administrative Agents and the Paying Agent, if any, 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 or, if so specified by this Agreement, all the Lenders as shall be necessary under the circumstances as provided in Section 10.02Lenders) or in the absence of its own gross negligence or wilful willful misconduct. No Agent The Administrative Agents and the Paying Agent, if any, shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Administrative Agents and the Paying Agent, a if any, by Borrower or a Lender, and no such Agent the Administrative Agents and the Paying Agent, if any, shall not 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 Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder under any Credit Document or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any the Credit Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit Document or any other agreement, instrument or document, or (v) the satisfaction of any condition condi- tion set forth in Article IV or elsewhere in any Credit Documentherein, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agents and the Paying Agent, if any. Each Agent The Administrative Agents and the Paying Agent, if any, 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 a proper Person. Each Agent An initial list of the proper Persons with respect to 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 Agents and the Paying Agent, if any, also may rely upon any statement made to it them orally or by telephone and believed by it in good faith them to be made by the proper Person, and shall not incur any liability for relying thereonthereon so long as such statement, in the case of a Borrowing Request, complies with the requirements of Section 2.03 or in the case of an Interest Election, complies with the requirement of Section 2.07, as the case may be, in all material respects (it being understood that oral notices of borrowing will be confirmed in writing by Borrower in accordance with Sections 2.03 and 2.07, as the case may be. Each Agent The Administrative Agents and the Paying Agent, if any, may consult with legal counsel (who may be counsel for any Credit PartyBorrower), independent accountants and other experts selected by itthem, 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. Each Agent The Administrative Agents and the Paying Agent, if any, may perform any and all its duties and exercise its their rights and powers by or through any one or more sub-agents appointed by such the Administrative Agents and the Paying Agent, if any. Such Agent The Administrative Agents and the Paying Agent, if any, and any such sub-agent agents may perform any and all its their duties and exercise its their rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent agents and to the Related Parties of the Administrative Agents and the Paying Agent, if any, and any such sub-agentagents, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agents and the Paying Agent, if any. Subject to the appointment and acceptance of a successor Agent Administrative Agents and the Paying Agent, if any, as provided in this paragraph, any an Administrative Agent and the Paying Agent, if any, may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation withwith Borrower, and with the consent of (unless an to appoint a successor which, so long as no Event of Default has occurred and is continuing pursuant continuing, shall be reasonably acceptable to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withheld) to appoint a successorBorrower. 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 and Paying Agent, if any, gives notice of its resignation, then the retiring Administrative Agent may (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shallPaying Agent, if the retiring Agent shall so requestany, designate and approve a successor Agent) may, on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Administrative Agent and Paying Agent, if any, 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 and Paying Agent, if any, 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 Paying Agent, if any, and the retiring Administrative Agent and Paying Agent, if any, shall be discharged from its duties and obligations hereunder. The fees payable by Borrower to a successor Administrative Agent and Paying Agent, if any, shall be the same as those payable to its predecessor unless otherwise agreed between Borrower and such successor. After an Administrative Agent’s 's and Paying Agent's, if any, resignation hereunder, the provisions of this Article VIII and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent and Paying Agent, if any, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Administrative Agent and Paying Agent, if any. The Lenders agree to indemnify each Agent in its capacity as such (to the extent not reimbursed by Borrower and without limiting the obligation of Borrower to do so), ratably according to their Applicable Percentage on the date on which indemnification is sought under this Article VIII (or, if indemnification is sought after the date upon which the Loans shall have been paid in full, ratably in accordance with their Applicable Percentage 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 Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints each Agent as its agent and authorizes the Agents to take such actions on its behalf and to exercise such powers as are delegated to the Agents such Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Without limiting the generality of the foregoing, the Agents are hereby expressly authorized to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents. Any Lender Person serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not such an Agent, and such Lender Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party Holdings or any Subsidiary or other Affiliate thereof as if it were not such an Agent hereunder. The Agents Neither Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no neither Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no neither Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents hereby that such Agent is required instructed in writing to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.08), and (c) except as expressly set forth in the Credit Loan Documents, no neither Agent shall have any duty to disclose, or nor shall it be liable for the failure to disclose, any information relating to Holdings, the Company Borrower or any Subsidiary of the Subsidiaries 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. No Neither Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.08) or in the absence of its own gross negligence or wilful misconduct. No Neither Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by Holdings, the Borrower Agent, a Borrower or a Lender, and no such neither Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax. If the Internal Revenue Service or any other Governmental Authority asserts a claim that the Administrative Agent did not properly withhold tax from amounts paid to or for the account of any Lender because the appropriate form was not delivered or was not properly executed or because such Lender failed to notify the Administrative Agent of a change in circumstance which rendered the exemption from, or reduction of, withholding tax ineffective or for any other reason, such Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including any penalties or interest and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred. 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. Each Agent may also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be have been made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agentit. Such Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein Credit Facilities as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraphbelow, any either Agent (i) may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower and (ii) may be removed by the Borrower by written notice to such Agent and the Lenders in the event that such Agent becomes the subject of an Insolvency Proceeding. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resignedresignation or removal, the Required Lenders, Lenders shall have the right (right, in consultation with, and with (except during the consent continuance of (unless an Event of Default has occurred and is continuing pursuant to clause (gDefault) or (h) with the prior approval of Section 7.01)the Borrower, the Company, which shall not 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 Agent gives notice of its resignationresignation or within 60 days after the Borrower gives notice of removal as the case may be, then then, in the case of a retiring agent, the retiring Agent may (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksBank, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank and (except during the continuance of an Event of Default) shall be acceptable to the Borrower, and, in the case of a removed Agent, the Borrower 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, or an Affiliate of any such bank, which appointment shall be subject to approval by the Required Lenders. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Agent, and the retiring or removed Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After an Agent’s resignation or removal hereunder, the provisions of this Article and Section 10.03 9.05 shall continue in effect for the benefit of such retiring or removed Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, Agreement or any other Credit Loan Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Tronox Inc)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and hereby irrevocably appoints each of the Issuing Banks hereby irrevocably Administrative Agent and the Collateral Agent as its agent and authorizes the Agents such Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents such Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral 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. Each of the banks serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not such an Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Company or any Subsidiary or other Affiliate thereof as if it were not such an Agent hereunderunder the Loan Documents. The Agents shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no Agent the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Loan Documents that such the applicable Agent is required to exercise in writing by the Required Lenders (or such other number or percentage or, in the case of the Lenders as shall be necessary under Collateral Documents, the circumstances as provided in Section 10.02)Required Secured Parties, and (c) except as expressly set forth in the Credit Loan Documents, no Agent the Agents shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the Company or any Subsidiary of its Subsidiaries that is communicated to or obtained by the bank banks serving as Agent Agents or any of its their respective Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage or, in the case of the Lenders as shall be necessary under Collateral Documents, the circumstances as provided in Section 10.02) Required Secured Parties, or in the absence of its own gross negligence or wilful willful misconduct. No Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower Company or a Lender, and no such Agent the 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 Credit Documentthis Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewithwith any Loan Document, (iii) qualification of (or lapse of any qualification of) any Account, Credit Card Receivable or Inventory 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 Credit Loan Document, (ivv) the validity, enforceability, effectiveness or genuineness of any Credit Loan Document or any other agreement, instrument or document, document or (vvi) the satisfaction of any condition set forth in Article IV Article 4 or elsewhere in any Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the applicable Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper Person. Each Agent of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for any Credit Partythe 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. Each Agent of the Agents may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Such Agent Each of the Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any either Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the Company. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (in consultation withright, and with the consent of the 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 (unless an not to be unreasonably withheld and except during the continuance of a Specified Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01hereunder, when no consent shall be required), the Company, which shall not 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 Agent gives notice of its resignation, then the retiring Agent may (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksLenders, appoint a successor 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 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 Agent, and the retiring Agent shall be discharged from its duties and obligations hereunderunder the Loan Documents. The fees payable by the Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After an such Agent’s resignation hereunder, the provisions of this Article and Section 10.03 8.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Loan Document, any related agreement or any document furnished hereunder or thereunder. None 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 institutions named foregoing, in its capacity as Syndication Agents or Documentation Agents in the heading of this Agreement shallsuch, 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 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. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into the ABL Intercreditor Agreement and each other Acceptable Intercreditor Agreement, as applicable, pursuant to Sections 6.01 and 6.02 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Acceptable Intercreditor Agreement. Notwithstanding anything to the contrary herein, the Arrangers shall not have any duties right, power, obligation, liability, responsibility or responsibilities of any kind duty under this Agreement, except in their respective capacities, as applicable, as the Administrative Agent or a Lender hereunder. Each Secured Party irrevocably authorizes and instructs the Administrative Agent to, and the Administrative Agent shall, upon request of the Company:
(a) without limiting Section 9.22, release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon the occurrence of the Termination Date, (ii) that is sold or to be sold or transferred as part of or in connection with any Disposition permitted under the Loan Documents to a Person that is not a Loan Party, (iii) that does not constitute (or ceases to constitute) Collateral, (iv) if the property subject to such Lien is owned by a Subsidiary Guarantor, upon the release of such Subsidiary Guarantor from its Guarantee of the Obligations otherwise in accordance with the Loan Documents, (v) as required under clause (d) below or (vi) if approved, authorized or ratified in writing by the Required Lenders (or such other number or percentage of Lenders as shall be necessary under the relevant circumstances as provided in Section 9.02) in accordance with Section 9.02;
(b) without limiting Section 9.22 (but subject to the proviso to Section 9.22(a)), release any Subsidiary Guarantor from its obligations under the Collateral Agreement (i) if such Person ceases to be a Restricted Subsidiary (or becomes an Excluded Subsidiary as a result of a single transaction or series of related transactions or any event or other circumstance permitted hereunder) and/or (ii) upon the occurrence of the Termination Date;
(c) [reserved];
(d) enter into subordination, intercreditor, collateral trust and/or similar agreements (and any amendments thereto) with respect to Indebtedness (including any Acceptable Intercreditor Agreement and any amendment thereto) that is (i) required or permitted to be subordinated hereunder or pari passu with the Liens securing the Obligations and/or (ii) secured by Liens, and with respect to which Indebtedness and/or Liens, this Agreement contemplates an intercreditor, subordination, collateral trust or similar agreement. Upon the request of the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Loan Party from its obligations under the Collateral Agreement or its Lien on any Collateral pursuant to this Article 8. In each case as specified in this Article 8, the Administrative Agent will (and each Lender hereby authorizes the Administrative Agent to), at the Company’s expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents, to subordinate its interest therein, or to release such Loan Party from its obligations under the Collateral Agreement, in each case in accordance with the terms of the Loan Documents and this Article 8.
Appears in 1 contract
Samples: First Lien Credit Agreement (Victoria's Secret & Co.)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Company or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no 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) no 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 Credit Loan Documents that such the Administrative Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02), and (c) except as expressly set forth in the Credit Loan Documents, no the Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the Company or any Subsidiary of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.029.02) or in the absence of its own gross negligence or wilful misconduct. No The Administrative Agent shall not be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Borrower Agent, a Borrower Company or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe 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. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such the Administrative Agent. Such The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents each Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing 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 Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After an the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 Credit Document, any Loan Document or related agreement or any document furnished hereunder or thereunder. None The provisions of this Article applicable to the Administrative Agent also shall be applicable to the Syndication Agent and the Collateral Agent, mutatis mutandis. Each of the institutions named as Syndication Agents or Documentation Agents in Lenders and Issuing Banks agrees to the heading terms and conditions of this the Collateral Sharing Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreementapplicable to the Collateral Agent.
Appears in 1 contract
Samples: Credit Agreement (Imc Global Inc)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Agents as its agents and authorizes the Agents to take such actions on its behalf and to exercise such powers as are delegated to the Agents by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender Person serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not such an Agent, and such Lender Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Company, Thomson-Reuters PLC or any Affiliate subsidiaries or other Affiliates thereof as if it were not such an Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no Agent the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Loan Documents that such Agent is the Agents are required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), ) and (c) except as expressly set forth in the Credit Loan Documents, no Agent the Agents shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the Company Company, Thomson-Reuters PLC or any Subsidiary of their subsidiaries that is communicated to or obtained by the bank serving as Agent them or any of its their Affiliates in any capacity. No Agent The 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 the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its their own gross negligence or wilful misconduct. No Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower Company or a Lender, and no such Agent the 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for any Credit PartyBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agentit. Such Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their its respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any each Agent may resign at any time by notifying the other Agents, the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders (in the case of a resignation by the General Administrative Agent, or, if ) or the General Administrative Agent shall have resigned, (in the Required Lenders, case of a resignation by any other Agent) shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withheld) to appoint a successor. If no successor Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be (a) in the case of any successor General Administrative Agent or Canadian Administrative Agent, a bank with an office in the City of New YorkYork and in Toronto, New York(b) in the case of any successor London Agent, a bank with an office in London and (c) in the case of any successor Australian Administrative Agent, a bank with an office in Sydney, or an Affiliate of any such bank, that is reasonably acceptable to the Company. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After an Agent’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, Loan Document or any related agreement or any document furnished hereunder or thereunder. None The parties agree that none of the institutions named as Joint Lead Arrangers and Joint Bookrunners, the Syndication Agents or the Documentation Agents in named on the heading cover page of this Agreement shall, in their capacities as suchsuch capacities, have any powers, duties or responsibilities of any kind under this AgreementAgreement or any other Loan Document.
Appears in 1 contract
The Agents. 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, where applicable, the Issuing Banks. (a) Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the entities named as Administrative Agent and Collateral Agent in the heading of this Agreement and its successors to serve as administrative agent and collateral agent, respectively, under the Loan Documents, and authorizes the Agents each Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents each Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender In addition, to the extent required under the laws of any jurisdiction other than the United States of America, each of the Lenders and the Issuing Banks hereby grants to each Agent any required powers of attorney to execute any Security Document governed by the laws of such jurisdiction on such Lender’s or Issuing Bank’s behalf.
(b) The Persons serving as Agent the 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 such an Agent, and such Lender 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 any Credit Party Parent, the Borrower or any other Subsidiary or other Affiliate thereof as if it such Person were not such an Agent hereunder. The Agents hereunder and without any duty to account therefor to the Lenders.
(c) No Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (ai) no Agent the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (bii) no Agent the Agents shall not have any duty to take any discretionary action or to exercise any discretionary powerspower, except discretionary rights and powers expressly contemplated by the Credit Loan Documents that such Agent is the Agents are required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as either Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 10.02the Loan Documents); provided that no Agent shall be required to take any action that, in its opinion, could expose such Agent to liability or be contrary to any Loan Document or applicable law, and (ciii) except as expressly set forth in the Credit Loan Documents, no Agent shall have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to Parent, the Company Borrower, any other Subsidiary or any Subsidiary other Affiliate of any of the foregoing that is communicated to or obtained by the bank Person serving as such Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as such Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 10.02the Loan Documents) or in the absence of its own gross negligence negligence, bad faith or wilful misconductwillful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by Parent, the Borrower AgentBorrower, a Borrower Lender or a Lenderan Issuing Bank, and no such Agent shall not be responsible for or have any duty to ascertain or inquire into (iA) any statement, warranty or representation made in or in connection with any Credit Loan Document, (iiB) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iiiC) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit DocumentLoan Document or the occurrence of any Default, (ivD) the sufficiency, validity, enforceability, effectiveness or genuineness of any Credit Loan Document or any other agreement, instrument or document, or (vE) the satisfaction of any condition set forth in Article IV or elsewhere in any Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to such Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Exposure or the component amounts thereof.
(d) Each Agent shall be entitled to rely uponrely, and shall not incur any liability for relying uponrelying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it in good faith to be genuine and to have been signed signed, sent or sent otherwise authenticated by the proper PersonPerson (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof). Each 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 in good faith to be made by the proper PersonPerson (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof), and shall not incur may act upon any liability for relying thereonsuch statement prior to receipt of written confirmation thereof. Each Agent may consult with legal counsel (who may be counsel for any Credit Partythe 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) Each Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by such the Administrative Agent. Such Each Agent and any such sub-agent may perform any of and all its their duties and exercise its their rights and powers through their respective Related PartiesParties (other than to a Disqualified Institution). The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 this Article shall apply to any such sub-agent and to the such Related Parties of the Agents each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as its activities as Agent. .
(f) Subject to the appointment and acceptance terms of a successor Agent as provided in this paragraph, any either Agent may resign at any time by notifying from its capacity as such. In connection with such resignation, the Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks and the CompanyBorrower. Upon receipt of any such notice of resignation, the Administrative Agent, or, if the Administrative other Agent shall have resigned, and the Required Lenders, Lenders shall have the right (in consultation withright, and with the consent prior written approval of the Borrower (unless an Event of Default has occurred and is continuing pursuant not to clause (g) be unreasonably withheld or (h) of Section 7.01delayed), the Company, which shall not be unreasonably withheld) to appoint a successor. If no successor shall have been so appointed by the Required Lenders with the consent of the Borrower and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignationintent to resign, then the retiring Agent may (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing Banks, appoint a successor Agent with the written approval of the Borrower (such approval not to be unreasonably withheld or delayed), 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 Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunderhereunder and under the other Loan Documents. After an The fees payable by Parent and the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed by Parent, the Borrower and such successor. Notwithstanding the foregoing, in the event no successor Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its intent to resign, the retiring Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Borrower, whereupon, on the date of effectiveness of such resignation stated in such notice, (i) the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, provided that, solely for purposes of maintaining any security interest granted to the retiring Agent under any Security Document for the benefit of the Secured Parties, the retiring Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties and, in the case of any Collateral in the possession of the Collateral Agent, shall continue to hold such Collateral, in each case until such time as a successor Collateral Agent is appointed and accepts such appointment in accordance with this paragraph (it being understood and agreed that the retiring Collateral Agent shall have no duty or obligation to take any further action under any Security Document, including any action required to maintain the perfection of any such security interest), and (ii) the successor Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, provided that (A) all payments required to be made hereunder or under any other Loan Document to the retiring Agent for the account of any Person other than the Agents shall be made directly to such Person and (B) all notices and other communications required or contemplated to be given or made to the retiring Agent shall also directly be given or made to each Lender and each Issuing Bank. Following the effectiveness of the retiring Agent’s resignation hereunderfrom its capacity as such, the provisions of this Article and Section 10.03 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 Agent, its sub-agents agent and their respective Related Parties (other than any Disqualified Institutions) in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Agent and in respect of the matters referred to in the proviso under clause (i) above.
(g) Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon either Agent, the Agents Lead 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, the Agents Lead 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 Credit Document, Loan Document or any related agreement or any document furnished hereunder or thereunder. None .
(h) Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Restatement Date, or delivering its signature page to an Assignment and Assumption shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Closing Date or the Restatement Date, as applicable.
(i) No Secured Party shall have any right individually to realize upon any of the institutions named Collateral or to enforce any Guarantee of the Secured Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Agent on behalf of the Secured Parties in accordance with the terms thereof. In the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Agents, as Syndication Agents agents for and representatives of the Secured Parties (but not any Lender or Documentation Agents Lenders in its or their respective individual capacities unless the heading Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Secured Parties at such sale or other disposition. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations provided under the Loan Documents, to have agreed to the foregoing provisions.
(j) Notwithstanding anything to the contrary set forth herein, it is understood and agreed that the Persons serving as Co-Arrangers hold titles in name only and their titles confer no obligations, duties or responsibilities under this Agreement shallor any other Loan Document, except in their capacities as suchLenders.
(k) In furtherance of the foregoing and not in limitation thereof, have any duties no Hedging Agreement or responsibilities Cash Management Services, the obligations under which constitute Secured Obligations, will create (or be deemed to create) in favor of any kind Secured Party that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under any Loan Document except as expressly provided in the Collateral Agreement. By accepting the benefits of the Collateral, each Secured Party that is a party to any such Hedging Agreement or a provider of any Cash Management Services, as applicable, shall be deemed to have appointed the Collateral Agent to serve as administrative agent and collateral agent under the Loan Documents and agreed to be bound by the Loan Documents as a Secured Party thereunder, subject to the limitations set forth in this paragraph.
(l) To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender in an amount equivalent to any applicable withholding tax. If the Internal Revenue Service or any authority of the United States or other jurisdiction asserts a claim that the Administrative Agent did not properly withhold tax from amounts paid to or for the account of any Lender for any reason (including, without limitation, because the appropriate form was not delivered, was not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstances that rendered the exemption from, or reduction of, withholding tax ineffective), such Lender shall indemnify the Administrative Agent (to the extent that the Administrative Agent has not already been reimbursed by any applicable Loan Party and without limiting the obligation of any applicable Loan Party to do so) fully for all amounts paid, directly or indirectly, by the Administrative Agent as Tax or otherwise, including penalties, additions to Tax and interest, together with all expenses incurred, including legal expenses, allocated staff costs and any out of pocket expenses. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this AgreementAgreement or any other Loan Document against any amount due to the Administrative Agent under this section. For the avoidance of doubt, for purposes of this section, the term “Lender” includes any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Samples: Credit Agreement (PetroLogistics LP)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Agents as its agents and authorizes the Agents to take such actions on its behalf and to exercise such powers as are delegated to the Agents by the terms hereof and of the other Credit Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender The bank or banks serving as Agent the 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 such AgentAgents, and such Lender bank or banks and its their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party Goodyear or any Subsidiary or other Affiliate thereof as if it they were not such Agent Agents hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Credit Documentsherein. Without limiting the generality of the foregoing, foregoing (a) no Agent the 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) no Agent the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by hereby that the Credit Documents that such Agent is Agents are required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02)Majority Lenders, and (c) except as expressly set forth in herein, the Credit Documents, no Agent Agents shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information communicated to the Agents by or relating to the Company Goodyear or any Subsidiary that is communicated to or obtained by the bank serving as Agent or any of its Affiliates in any capacitySubsidiary. No Agent The 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 10.02) case may be, or in the absence of its their own gross negligence or wilful misconduct. No Agent In addition, the Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent the Agents by Goodyear, the Borrower Agent, a Borrower European J.V. or a Lender, and no such Agent the 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 Credit Documentthis Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Documentherein, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Documentherein, other than to confirm receipt of items expressly required to be delivered to such Agentthe Agents. Each Agent The 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 in good faith them to be genuine and to have been signed or sent by the proper Person. Each Agent The Agents also may rely upon any statement made to it them orally or by telephone and believed by it in good faith them to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent The Agents may consult with legal counsel (who may be counsel for any Credit PartyGoodyear or the 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. Each Agent The Agents may perform any and all its their duties and exercise its their rights and powers by or through any one or more sub-agents appointed by such Agentthe Agents. Such Agent The Agents and any such sub-agent may perform any and all its their duties and exercise its their rights and powers through their respective Related PartiesAffiliates. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties Affiliates of the Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, shall have the right (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withheld) to appoint a successor. If no successor shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
Samples: Term Loan and Revolving Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent, and each of the Lenders also hereby irrevocably appoints the London Administrative Agent as its sub-agent and authorizes the London Administrative Agent, to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent and the London Administrative Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender [[NYCORP:3024149v15:4452W:11/30/07--12:40 p]] The 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 such Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Company or any Subsidiary or other Affiliate thereof as if it were not such an Agent hereunder. The Agents bank serving as an Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no such Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no such 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 Credit Loan Documents that such Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02), and (c) except as expressly set forth in the Credit Loan Documents, no such Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the Company or any Subsidiary of its Subsidiaries that is communicated to or obtained by the bank serving as such Agent or any of its Affiliates in any capacity. No An 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 10.029.02) or in the absence of its own gross negligence or wilful misconduct. No An Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each An 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. Each An 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. Each An Agent may consult with legal counsel (who may be counsel for any Credit a Loan Party), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each An Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Such Agent and any such sub-agent may perform any and all its duties and exercise its rights and [[NYCORP:3024149v15:4452W:11/30/07--12:40 p]] powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of (i) the Agents Administrative Agent and any such sub-agent and (ii) the London Administrative Agent and any 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 and as London Administrative Agent, respectively. Subject to the appointment and acceptance of a successor Administrative Agent or successor London Administrative Agent, as the case may be, as provided in this paragraph, any an Agent may resign at any time by notifying the Lenders, the Issuing Banks Banks, the Company and the Companyother Agent. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (in consultation withright, and with the consent of the Company (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which consent shall not be unreasonably withheld, and shall not be required so long as any Event of Default set forth in clause (i) or (j) of Section 7.01 has occurred and is continuing) and the other Agent (which consent shall not 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 Agent gives notice of its resignation, then the such retiring Agent may (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be (i) a bank with an office in New York, New York, or an Affiliate of any such bank, for the successor Administrative Agent and (ii) a bank with an office in London, United Kingdom, or an Affiliate of any such bank, for the successor London Administrative Agent. Upon the acceptance of its appointment as Administrative Agent or London 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 Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Company or any Subsidiary Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After an Agent’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents either Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents either Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any Loan Document or related agreement or any document furnished hereunder or thereunder. None of Each party hereto agrees and acknowledges that the institutions named as Syndication Agents or Documentation Agents in Agent and the heading of this Agreement shall, in their capacities as such, Arrangers do not have any duties or responsibilities of in their capacities as Syndication Agents and Arrangers, respectively, hereunder and shall not have, or become subject to, any kind under this Agreement.liability hereunder in such capacities. [[NYCORP:3024149v15:4452W:11/30/07--12:40 p]]
Appears in 1 contract
Samples: Credit Agreement (Yum Brands Inc)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as administrative agent and collateral agent under the Loan Documents, and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender serving In addition, to the extent required under the laws of any jurisdiction other than the United States of America, each of the Lenders hereby grants to the Administrative Agent any required powers of attorney to execute any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. No Borrower nor any Subsidiary shall have rights as Agent a third-party beneficiary of any such provisions. Each of the 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 such an Agent, and such Lender 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 any Credit Party Borrower or any Subsidiary or other Affiliate thereof as if it such Person were not such an Agent hereunderhereunder and without any duty to account therefor to the Lenders. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no 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) no the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary powerspower, except discretionary rights and powers expressly contemplated by the Credit Loan Documents that such the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 10.02the 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 Credit Loan Documents, no the Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the Company Borrowers, any Subsidiary or any Subsidiary Affiliate of any of the foregoing that is communicated to or obtained by the bank Person serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.02the Loan Documents) or in the absence of its own gross negligence or wilful misconduct, as determined by a court of competent jurisdiction by a final and non-appealable judgment. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Borrower AgentFCX, a Borrower Lender or a Lenderan Issuing Bank, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit DocumentLoan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Each 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 uponrely, and shall not incur any liability for relying uponrelying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it in good faith to be genuine and to have been signed signed, sent or sent otherwise authenticated by the proper PersonPerson (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof). Each 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 in good faith to be made by the proper PersonPerson (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof), and shall not incur may act upon any liability for relying thereonsuch statement prior to receipt of written confirmation thereof. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by such the Administrative Agent. Such The Administrative Agent and any such sub-agent may perform any of and all its their duties and exercise its their rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 this Article shall apply to any such sub-agent and to the Related Parties of the Agents Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance terms of a successor Agent as provided in this paragraph, any 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 Banks and the CompanyBorrowers. Upon receipt of any such notice of resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)Borrowers, the Company, which shall not 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 resignationintent to resign, then the retiring Administrative Agent may (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing Banks, appoint a successor Agent 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 hereunderhereunder and under the other Loan Documents. After an The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed by the Borrowers and such successor. 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, including in its capacity as the Collateral Agent, provided that, solely for purposes of maintaining any security interest granted to the Administrative Agent or the Collateral Agent under any Collateral Document for the benefit of the Secured Parties, the retiring Administrative Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties and, in the case of any Collateral in the possession of the Administrative Agent, shall continue to hold such Collateral, in each case until such time as a successor Administrative Agent is appointed and accepts such appointment in accordance with this paragraph (it being understood and agreed that the retiring Administrative Agent shall have no duty or obligation to take any further action under any Collateral Document, including any action required to maintain the perfection of any such security interest), and (b) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, provided that (i) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (ii) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall also directly be given or made to each Lender and each Issuing Bank. Following the effectiveness of the Administrative Agent’s resignation hereunderfrom its capacity as such, the provisions of this Article and Section 10.03 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents sub‑agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as AgentAdministrative 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 Agents 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 Agents 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 Credit Document, Loan Document or any related agreement or any document furnished hereunder or thereunder. None Each Lender, by delivering its signature page to this Agreement on or prior to the Original Closing Date, or delivering its signature page to an Assignment and Assumption or an Incremental Facility Agreement pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Original Closing Date. Except with respect to the exercise of setoff rights of any Lender in accordance with Section 9.08 or with respect to a Lender’s right to file a proof of claim in an insolvency proceeding, no Secured Party shall have any right individually to realize upon any of the institutions Collateral or to enforce any Guarantee of the Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms thereof. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the foregoing provisions. The Secured Parties irrevocably authorize the Collateral Agent, at its option and in its discretion, to subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 6.02(c). Neither the Administrative Agent not the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Collateral Party in connection therewith, nor shall the Administrative Agent or the Collateral Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral. Notwithstanding anything herein to the contrary, neither the Syndication Agent nor any Person named as Syndication Agents or Documentation Agents in on the heading cover page of this Agreement shall, in their capacities as such, an arranger or a documentation agent shall have any duties or responsibilities 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 or Collateral Party shall have any rights as a third party beneficiary of any kind under this Agreementsuch provisions.
Appears in 1 contract
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Documentsthis Agreement or any other Loan Document, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Documentsherein. Without limiting the generality of the foregoing, (a) no 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) no 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 hereby that the Credit Documents that such Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02), and (c) except as expressly set forth in herein, the Credit Documents, no Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any Subsidiary of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit Document this Agreement or any other agreement, instrument or documentLoan Document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such the Administrative Agent. Such The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right right, with (in consultation with, and with if no Default then exists) the consent of the Borrower (unless an Event of Default has occurred and is continuing pursuant not to clause (g) or (h) of Section 7.01), the Company, which shall not 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 (in consultation withmay, and on behalf of the Lenders, with the consent of the Borrower (unless an Event of not to be unreasonably withheld, delayed or conditioned) if no Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing Banksthen exists, appoint a successor Agent 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 an the Administrative Agent’s resignation hereunder, the provisions of this Article VIII and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 Credit Loan Document, any related agreement or any document furnished hereunder or thereunder. None Notwithstanding any other provision of this Agreement, each of the financial institutions named as “Syndication Agents or Documentation Agents in Agent,” “Joint Bookrunner” and “Joint Lead Arranger” on the heading cover page of this Agreement 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 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 to the extent, provided for under this Article VIII and Section 9.03. Without limitation of the foregoing, no such financial institution shall, in their capacities as suchsolely by reason of this Agreement or any other Loan Document, have any duties or responsibilities fiduciary relationship in respect of any kind under this AgreementLender or any other Person.
Appears in 1 contract
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Documentshereof, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Documentsherein. Without limiting the generality of the foregoing, (a) no 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) no 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 hereby that the Credit Documents that such Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02), and (c) except as expressly set forth in herein, the Credit Documents, no Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the Company Borrower or any Subsidiary of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.029.02) or in the absence of its own gross negligence or wilful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Documentthis Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Documentherein, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Documentherein, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such the Administrative Agent. Such The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (in consultation withright, and with the consent of the Borrower (unless an Event of Default has occurred and is continuing pursuant not to clause (g) be unreasonably withheld or (h) of Section 7.01delayed), the Company, which shall not 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing Banks, appoint appoint, with the consent of the Borrower (not to be unreasonably withheld or delayed), 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 an the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 Credit Document, any related agreement or any document furnished hereunder or thereunder. None of It is agreed that the institutions named as Syndication Agents or Agent and the Co-Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any no duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
Samples: Five Year Competitive Advance and Revolving Credit Facility Agreement (Sherwin Williams Co)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender Person serving as 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 such the Administrative Agent, and such Lender Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no 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) no 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 Credit Loan Documents that such the Administrative Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02), and (c) except as ------------ expressly set forth in the Credit Loan Documents, no the Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to any of the Company or any Subsidiary Loan Parties that is communicated to or obtained by the bank Person serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.029.02) or in the absence of its ------------ own gross negligence or wilful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent it by the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such the Administrative Agent. Such The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withheld) to appoint a successor. If no successor shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.a
Appears in 1 contract
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the entities named as the Administrative Agent and the London Agent in the heading of this Agreement, and their successors in such capacities, to serve as the Administrative Agent and the London Agent, respectively, under the Loan Documents and authorizes the Agents to take such actions on its behalf and to exercise such powers as are delegated to the Agents by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender Person serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not such an Agent, and such Lender Person and its Affiliates may accept deposits from, lend money to to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Credit Party Parent or any Subsidiary or other Affiliate thereof as if it such Person were not such an Agent hereunderhereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Agents shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents, and their duties hereunder and under the other Loan Documents shall be administrative in nature. Without limiting the generality of the foregoing, (a) no Agent the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuingcontinuing (and it is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Agents is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties), (b) no Agent the Agents shall not have any duty to take any discretionary action or to exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Loan Documents that such Agent is the Agents are required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as the applicable Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 10.029.02); provided that no Agent shall be required to take any action that, in its opinion, could expose such Agent to liability or be contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Credit Loan Documents, no Agent the Agents shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the Company Parent or any Subsidiary or other Affiliate thereof that is communicated to or obtained by the bank serving as Agent them or any of its their Affiliates in any capacity. No Agent The 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 the Lenders as shall be necessary necessary, or as the applicable Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 10.029.02) or in the absence of its their own gross negligence or wilful misconductwillful misconduct (such absence to be presumed for purposes of this Article VIII unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). No Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to such Agent by the Borrower Agent, a Borrower Parent or a Lender, and no such Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Credit Loan Document, including any representation by any Incremental Lender in any Incremental Facility Agreement (it being understood and agreed that each Agent may rely, and shall incur no liability for relying, upon such representation), (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit DocumentLoan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent, or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to such Agent. Notwithstanding anything herein to the contrary, the Agents shall not have any liability arising from any confirmation of any Revolving Credit Exposure or the component amounts thereof, any determination of the Exchange Rate, the LC Exchange Rate or the US Dollar Equivalent or any determination of any rate that reflects the costs to any Lenders of making or maintaining any Loans as contemplated by Section 2.14. Each Agent shall be entitled to rely uponrely, and shall not incur any liability for relying uponrelying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it in good faith to be genuine and to have been signed signed, sent or sent otherwise authenticated by the proper PersonPerson (including, if applicable, a Financial Officer). Each Agent also may rely rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper PersonPerson (including, if applicable, a Financial Officer), and may act upon any such statement prior to receipt of written confirmation thereof. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, amendment, extension or renewal 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 not incur any liability for relying thereonhave received notice to the contrary from such Lender or such Issuing Bank sufficiently in advance to the making of such Loan or the issuance, amendment, extension or renewal of such Letter of Credit. Each Agent may consult with legal counsel (who may be counsel for any Credit PartyBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by such Agentit. Such Each Agent and any such sub-agent may perform any of and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 this Article shall apply to any such sub-agent and to the Related Parties of the Agents each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent or the London Agent, as applicable. No Agent shall be responsible for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. Subject to the appointment and acceptance terms of a successor Agent as provided in this paragraph, any each Agent may resign at any time by notifying the Lenders, the Issuing Banks and the CompanyParent. Upon receipt of any such notice of resignation, the Required Lenders (in the case of a resignation of the Administrative Agent, or, if ) or the Administrative Agent shall have resigned, (in the Required Lenders, case of a resignation by the London Agent) shall have the right (right, in consultation withwith Parent, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not 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 Agent gives notice of its resignation, then the retiring Agent may (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing Banks, appoint a successor Agent Agent, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. If any Agent shall be a Defaulting Lender pursuant to clause (e) of the definition of such term, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to Parent and such Agent remove such Agent in its capacity as such and, in consultation with Parent, appoint a successor. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Agent, as the case may be, and the such retiring or removed Agent shall be discharged from its duties and obligations hereunderhereunder and under the other Loan Documents. The fees payable by the Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. Notwithstanding the foregoing, in the event (a) no successor Agent to a retiring Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its intent to resign, the retiring Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and Parent or (b) no successor to a removed Agent shall have been so appointed and shall have accepted such appointment by the day that is 30 days following of the issuance of a notice of removal, the removal shall become effective on such 30th day, and on the date of effectiveness of such resignation or removal, as the case may be, (i) the retiring or removed Agent shall be discharged from its duties and obligations hereunder and under the Loan Documents, and (ii) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Agent; provided that (A) all payments required to be made hereunder or under any other Loan Documents to the retiring or removed Agent for the account of any Person other than such Agent shall be made directly to such Person and (B) all notices and other communications required or contemplated to be given or made to the retiring or removed Agent shall also directly be given or made to the other Agent, and each Lender and each Issuing bank. After an Agent’s resignation hereunderor removal hereunder and under the other Loan Documents, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring or removed Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent.
(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, LC Exposure and all other obligations under the Loan Documents that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the Issuing Banks and such Agent (including any claim under Sections 2.12, 2.13, 2.15, 2.16, 2.17 and 9.03) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender and each Issuing Bank to make such payments to such Agent and, in the event that such Agent shall consent to the making of such payments directly to the Lenders or the Issuing Banks, to pay to such Agent any amount due to it, in its capacity as Agent, under the Loan Documents (including under Section 9.03). Each Nothing contained herein shall be deemed to authorize any Agent to authorize or consent to or accept or adopt on behalf of any Lender acknowledges that it has, independently and without reliance upon the Agents or any other Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the obligations or the rights of any Lender and based on such documents and information as it has deemed appropriateor Issuing Bank, made its own credit analysis and decision or to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions vote in taking or not taking action under or based upon this Agreement, any other Credit Document, any related agreement or any document furnished hereunder or thereunder. None respect of the institutions named as Syndication Agents or Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities claim of any kind under this AgreementLender or Issuing Bank in any such proceeding.
Appears in 1 contract
Samples: Credit Agreement (TripAdvisor, Inc.)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the entities named as the Administrative Agent and the London Agent in the heading of this Agreement, and their successors in such capacities, to serve as the Administrative Agent and the London Agent, respectively, under the Loan Documents and authorizes the Agents to take such actions on its behalf and to exercise such powers as are delegated to the Agents by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender Person serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not such an Agent, and such Lender Person and its Affiliates may accept deposits from, lend money to to, own securities of, act as the financial adviser or in any other advisory capacity for and generally engage in any kind of business with any Credit Party the Company or any Subsidiary or other Affiliate thereof as if it such Person were not such an Agent hereunderhereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Agents shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no Agent the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuingcontinuing (and it is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Agents is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties), (b) no Agent the Agents shall not have any duty to take any discretionary action or to exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Loan Documents that such Agent is the Agents are required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as the applicable Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 10.029.02); provided that no Agent shall be required to take any action that, in its opinion, could expose such Agent to liability or be contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Credit Loan Documents, no Agent the Agents shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the Company or any Subsidiary or other Affiliate thereof that is communicated to or obtained by the bank serving as Agent them or any of its their Affiliates in any capacity. No Agent The 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 the Lenders as shall be necessary necessary, or as the applicable Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 10.029.02) or in the absence of its their own gross negligence or wilful misconductmisconduct (such absence to be presumed for purposes of this Article VIII unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). No Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to such Agent by the Borrower Agent, a Borrower Company or a Lender, and no such Agent the 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit DocumentLoan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent, or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to such Agent. Notwithstanding anything herein to the contrary, the Agents shall not have any liability arising from any confirmation of any Revolving Credit Exposure or the component amounts thereof., any determination of the Exchange Rate, the LC Exchange Rate or the US Dollar Equivalent or any determination of any rate that reflects the costs to any Lenders of making or maintaining any Loans as contemplated by Section 2.14. Each Agent shall be entitled to rely uponrely, and shall not incur any liability for relying uponrelying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it in good faith to be genuine and to have been signed signed, sent or sent otherwise authenticated by the proper PersonPerson (including, if applicable, a Financial Officer). Each Agent also may rely rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper PersonPerson (including, if applicable, a Financial Officer), and may act upon any such statement prior to receipt of written confirmation thereof. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, amendment, extension or renewal 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 not incur any liability for relying thereonhave received notice to the contrary from such Lender or such Issuing Bank sufficiently in advance to the making of such Loan or the issuance, amendment, extension or renewal of such Letter of Credit. Each Agent may consult with legal counsel (who may be counsel for any Credit PartyBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by such Agentit. Such Each Agent and any such sub-agent may perform any of and all its duties and exercise its rights and powers through their itstheir respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 this Article shall apply to any such sub-agent and to the Related Parties of the Agents each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities facility provided for herein as well as activities as the Administrative Agent or the London Agent, as applicable. No Agent shall be responsible for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any each Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon receipt of any such notice of resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not 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 Agent gives notice of its resignation, then the retiring Agent may (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing Banks, appoint a successor 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 Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunderhereunder and under the other Loan Documents. The fees payable by the Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After an Agent’s resignation hereunderhereunder and under the other Loan Documents, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon the Agents either Agent, any 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 the Agents either Agent, any 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 Credit Document, Loan Document or any related agreement or any document furnished hereunder or thereunder. None of Each Lender and Issuing Bank, by delivering its signature page to this Agreement, or delivering its signature page to an Assignment and Assumption or an Issuing Bank Agreement pursuant to which it shall become a Lender or an Issuing Bank, as the institutions named as case may be, hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on or prior to the Restatement Effective Date. Notwithstanding anything herein to the contrary, no Arranger, Co-Syndication Agents Agent or Documentation Agents in the heading of this Agreement shall, in their capacities as such, Agent shall have any duties or responsibilities of any kind obligations under this AgreementAgreement 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 expense reimbursement and indemnities to the extent provided for hereunder.
Appears in 1 contract
Samples: Credit Agreement (Expedia, Inc.)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Documentshereof, together with such actions and powers as are reasonably incidental thereto. Any Lender The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not serving in such Agentagency capacity, and such Lender Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower, any Credit Party Subsidiary or any Enterprise GP or other Affiliate thereof as if it were not such Agent an agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Documentsherein. Without limiting the generality of the foregoing, (a) no 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) no 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 hereby that the Credit Documents that such Administrative Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.029.02), and (c) except as expressly set forth in herein, the Credit Documents, no Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the Company Borrower, any of its Subsidiaries or any Subsidiary Enterprise GP that is communicated to or obtained by the bank any of them while serving as Agent Administrative Agent, as applicable, or by any of its their respective Affiliates in any capacity. No 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 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Documentthis Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Documentherein, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Documentherein, other than to confirm receipt of items expressly required to be delivered to such Agentthem. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such AgentPerson. Such The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right right, with the Borrower’s approval (in consultation withwhich will not be unreasonably withheld or delayed, and with the consent of (unless Borrower’s approval shall not be required if an Event of Default has occurred and which is continuing pursuant to clause (g) or (h) of Section 7.01continuing), the Company, which shall not 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 may, with the Borrower’s approval (in consultation withwhich will not be unreasonably withheld or delayed, and with the consent of (unless Borrower’s approval shall not be required if an Event of Default has occurred and which is continuing pursuant to clause (g) or (h) of Section 7.01continuing), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksBank, 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 Agent, 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 an Agentsuch agent’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 Credit Document, any related agreement or any document furnished hereunder or thereunder. None Neither the Co-Arrangers and Joint Bookrunners nor the Syndication Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, neither the Co-Arrangers and Joint Bookrunners nor the Syndication Agent shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgements with respect to each of the institutions named Co-Arrangers and Joint Bookrunners and the Syndication Agent as Syndication Agents or Documentation Agents it makes with respect to the Administrative Agent in the heading immediately preceding paragraph of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this AgreementArticle VIII.
Appears in 1 contract
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no 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) no 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 Credit Loan Documents that such 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 10.022.05(j) and Section 9.02), and (c) except as expressly set forth in the Credit Loan Documents, no the Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to Holdings, the Company Borrower or any Subsidiary of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Holdings, the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents subagents appointed by such the Administrative Agent. Such The Administrative Agent and any such sub-agent 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 and the provisions of Section 10.03 shall apply to any such sub-agent subagent and to the Related Parties of the Agents each Administrative Agent and any such sub-agentsubagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)Borrower, the Company, which shall not 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksBank, appoint a successor Administrative Agent which shall be a bank with an office in Charlotte, North Carolina or 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 an the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents 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 Agents 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 Agents 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 Credit Document, any Loan Document or related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents The Lenders identified in the heading of this Agreement shall, in their capacities as such, the Syndication Agent and the Documentation Agent shall not have any duties right, power, obligation, liability, responsibility or responsibilities of any kind duty under this AgreementAgreement other than those applicable to all Lenders. Without limiting the foregoing, neither the Syndication Agent nor the Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender.
Appears in 1 contract
Samples: Credit Agreement (Ameripath Inc)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no 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) no 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 Credit Loan Documents that such 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 10.022.05(j) and Section 9.02), and (c) except as expressly set forth in the Credit Loan Documents, no the Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to Holdings, the Company Borrower or any Subsidiary of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Holdings, the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such the Administrative Agent. Such The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents each Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)Borrower, the Company, which shall not 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksBank, 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 an the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 Credit Document, any Loan Document or related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents The Lenders identified in the heading of this Agreement shall, in their capacities as such, the Syndication Agent and the Documentation Agent shall not have any duties right, power, obligation, liability, responsibility or responsibilities of any kind duty under this AgreementAgreement other than those applicable to all Lenders. Without limiting the foregoing, neither the Syndication Agent nor the Documentation Agent shall have or be deemed to have a fiduciary relationship with any Lender.
Appears in 1 contract
Samples: Credit Agreement (St. Louis Pharmaceutical Services, LLC)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints (a) the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as Administrative Agent under this Agreement and the other Loan Documents and (b) the entity named as London Agent in the heading of this Agreement and its successors as London Agent under this Agreement and the other Loan Documents, and authorizes the Agents Administrative Agent and the London Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent or the London Agent, as applicable, by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender Person serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not such an Agent, and such Lender Person and its Affiliates may accept deposits from, lend money to to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Credit Party the Company or any Subsidiary or other Affiliate thereof as if it such Person were not such an Agent hereunderhereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Agents No Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents, and the duties of the Agents hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (a) no Agent the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuingcontinuing (and it is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to either Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties), (b) no Agent the Agents shall not have any duty to take any discretionary action or to exercise any discretionary powerspower, except discretionary rights and powers expressly contemplated by the Credit Loan Documents that such an Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as such Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 10.02the Loan Documents), provided that an Agent shall not be required to take any action that, in its opinion, could expose such Agent to liability or be contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Credit Loan Documents, no Agent the Agents shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the Company Company, any Subsidiary or any Subsidiary other Affiliate of the Company that is communicated to or obtained by the bank Person serving as an Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as such Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 10.02the Loan Documents) or in the absence of its own gross negligence or wilful misconductmisconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and non-appealable judgment). No Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to such Agent by the Borrower AgentCompany, a Borrower Lender or a Lenderan Issuing Bank, and no such Agent the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made or deemed made in or in connection with any Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit DocumentLoan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to an Agent. Notwithstanding anything herein to the contrary, no Agent shall have any liability arising from any confirmation of the Revolving Credit Exposure or the component amounts thereof. Each Agent shall be entitled to rely uponrely, and shall not incur any liability for relying uponrelying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it in good faith to be genuine and to have been signed signed, sent or sent otherwise authenticated by the proper PersonPerson (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof). Each 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 in good faith to be made by the proper PersonPerson (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the maker thereof), and shall not incur may act upon any liability for relying thereonsuch statement prior to receipt of written confirmation thereof. Each Agent may consult with legal counsel (who may be counsel for any Credit Partythe 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. Each Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by such Agent. Such Each Agent and any such sub-agent may perform any of and all its their duties and exercise its their rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 this Article shall apply to any such sub-agent and to the Related Parties of the Agents each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Agent. No Agent shall be responsible for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. Subject to the appointment and acceptance terms of a successor Agent as provided in this paragraph, any each Agent may resign at any time by notifying from its capacity as such. In connection with such resignation, such Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks and the Company. Upon receipt of any such notice of resignation, the Required Lenders (in the case of a resignation by the Administrative Agent, or, if ) or the Administrative Agent shall have resigned, (in the Required Lenders, case of a resignation by the London Agent) shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withheld) to appoint a successor. If no successor shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignationintent to resign, then the retiring Agent may (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing Banks, appoint a successor Agent Agent, which shall be a bank with an office in New York, New York, in the case of a successor to the Administrative Agent, or with an office in London, in the case of a successor to the London Agent, or, in each case, an Affiliate of any such bank. If any Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to Company and such Agent remove such Agent in its capacity as such and, in consultation with the Company, appoint a successor. Upon the acceptance of its appointment as Administrative Agent or London Agent, as applicable, hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Agent, as the case may be, and the such retiring or removed Agent shall be discharged from its duties and obligations hereunderhereunder and under the other Loan Documents. After The fees payable by the Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed by the Company and such successor. Notwithstanding the foregoing, in the event (a) no successor Agent to a retiring Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its intent to resign, the retiring Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Company or (b) no successor to a removed Agent shall have been so appointed and shall have accepted such appointment by the day that is 30 days following of the issuance of a notice of removal, the removal shall become effective on such 30th day, and on the date of effectiveness of such resignation or removal, as the case may be, (i) the retiring or removed Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, and (ii) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Agent; provided that (A) all payments required to be made hereunder or under any other Loan Document to the retiring or removed Agent for the account of any Person other than such Agent shall be made directly to such Person and (B) all notices and other communications required or contemplated to be given or made to the retiring or removed Agent shall also directly be given or made to the other Agent and each Lender and each Issuing Bank. Following the effectiveness of an Agent’s resignation hereunderor removal from its capacity as such, the provisions of this Article and Section 10.03 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring or removed Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an Agent. Each Lender and Issuing Bank irrevocably authorizes the Administrative Agent to determine (it being understood that such determination will be made jointly with the Company), in connection with any Subsidiary that is a Foreign Subsidiary becoming a Guarantor pursuant to the Guarantee Agreement, the terms and conditions of any limitations to be set forth in the Guarantee Agreement (or the Supplement referred to therein) with respect to such Subsidiary as contemplated by the definition of the term “Designated Subsidiary”. Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon the Agents Agents, the Arrangers 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 the Agents Agents, the Arrangers 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 Credit Document, Loan Document or any related agreement or any document furnished hereunder or thereunder. None Each Lender, by delivering its signature page to this Agreement, or delivering its signature page to an Assignment and Assumption or an Accession Agreement pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, any Agent or the Lenders on the Effective Date. Notwithstanding anything herein to the contrary, none of the institutions Arrangers or any Person named as Syndication Agents or Documentation Agents in on the heading cover page of this Agreement shall, in their capacities as such, a Syndication Agent shall have any duties or responsibilities 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 Company or any other Loan Party shall have any rights as a third party beneficiary of any kind under this Agreementsuch provisions.
Appears in 1 contract
Samples: Credit Agreement (Verisign Inc/Ca)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably authorizes the Agents to take such actions on its behalf and to exercise such powers as are delegated to the Agents by the terms of the Credit Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender serving as Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not such Agent, and such Lender and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party or any Affiliate thereof as if it were not such Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Credit Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Credit Documents, no Agent shall have any duty to disclose, or be liable for the failure to disclose, any information relating to the Company Holdings or any Subsidiary that is communicated to or obtained by the bank serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower or a Lender, and no such Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Document, (iv) the validity, enforceability, effectiveness or genuineness of any 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 Credit Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for any Credit Party), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Such Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, shall have the right (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withheld) to appoint a successor. If no successor shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, 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, where applicable, the Issuing Banks. Each of the Lenders and hereby irrevocably appoints each of the Issuing Banks hereby irrevocably Administrative Agent and the Collateral Agent as its agent and authorizes the Agents such Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents such Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral 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. Each of the banks serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not such an Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Company or any Subsidiary or other Affiliate thereof as if it were not such an Agent hereunderunder the Loan Documents. The Agents shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no Agent the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Loan Documents that such the applicable Agent is required to exercise in writing by the Required Lenders (or such other number or percentage or, in the case of the Lenders as shall be necessary under Collateral Documents, the circumstances as provided in Section 10.02)Required Secured Parties, and (c) except as expressly set forth in the Credit Loan Documents, no Agent the Agents shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the Company or any Subsidiary of its Subsidiaries that is communicated to or obtained by the bank banks serving as Agent Agents or any of its their respective Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage or, in the case of the Lenders as shall be necessary under Collateral Documents, the circumstances as provided in Section 10.02) Required Secured Parties, or in the absence of its own gross negligence or wilful willful misconduct. No Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower Company or a Lender, and no such Agent the 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 Credit Documentthis Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewithwith any Loan Document, (iii) qualification of (or lapse of any qualification of) any Account, Credit Card Receivable or Inventory 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 Credit Loan Document, (ivv) the validity, enforceability, effectiveness or genuineness of any Credit Loan Document or any other agreement, instrument or document, document or (vvi) the satisfaction of any condition set forth in Article IV 4 or elsewhere in any Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the applicable Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper Person. Each Agent of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for any Credit Partythe 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. Each Agent of the Agents may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Such Agent Each of the Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any either Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the Company. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (in consultation withright, and with the consent of the 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 (unless an not to be unreasonably withheld and except during the continuance of a Specified Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01hereunder, when no consent shall be required), the Company, which shall not 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 Agent gives notice of its resignation, then the retiring Agent may (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksLenders, appoint a successor 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 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 Agent, and the retiring Agent shall be discharged from its duties and obligations hereunderunder the Loan Documents. The fees payable by the Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After an such Agent’s resignation hereunder, the provisions of this Article and Section 10.03 8.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents sub‑agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Loan Document, any related agreement or any document furnished hereunder or thereunder. None 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 institutions named foregoing, in its capacity as Syndication Agents or Documentation Agents in the heading of this Agreement shallsuch, 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 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. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into the ABL Intercreditor Agreement and each other Acceptable Intercreditor Agreement, as applicable, pursuant to Sections 6.01 and 6.02 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Acceptable Intercreditor Agreement. Notwithstanding anything to the contrary herein, the Arrangers shall not have any duties right, power, obligation, liability, responsibility or responsibilities of any kind duty under this Agreement, except in their respective capacities, as applicable, as the Administrative Agent or a Lender hereunder. Each Secured Party irrevocably authorizes and instructs the Administrative Agent to, and the Administrative Agent shall, upon request of the Company:
(a) without limiting Section 9.22, release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon the occurrence of the Termination Date, (ii) that is sold or to be sold or transferred as part of or in connection with any Disposition permitted under the Loan Documents to a Person that is not a Loan Party, (iii) that does not constitute (or ceases to constitute) Collateral, (iv) if the property subject to such Lien is owned by a Subsidiary Guarantor, upon the release of such Subsidiary Guarantor from its Guarantee of the Obligations otherwise in accordance with the Loan Documents, (v) as required under clause (d) below or (vi) if approved, authorized or ratified in writing by the Required Lenders (or such other number or percentage of Lenders as shall be necessary under the relevant circumstances as provided in Section 9.02) in accordance with Section 9.02;
(b) without limiting Section 9.22 (but subject to the proviso to Section 9.22(a)), release any Subsidiary Guarantor from its obligations under the Collateral Agreement (i) if such Person ceases to be a Restricted Subsidiary (or becomes an Excluded Subsidiary as a result of a single transaction or series of related transactions or any event or other circumstance permitted hereunder) and/or (ii) upon the occurrence of the Termination Date;
(c) [reserved];
(d) enter into subordination, intercreditor, collateral trust and/or similar agreements (and any amendments thereto) with respect to Indebtedness (including any Acceptable Intercreditor Agreement and any amendment thereto) that is (i) required or permitted to be subordinated hereunder or pari passu with the Liens securing the Obligations and/or (ii) secured by Liens, and with respect to which Indebtedness and/or Liens, this Agreement contemplates an intercreditor, subordination, collateral trust or similar agreement. Upon the request of the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Loan Party from its obligations under the Collateral Agreement or its Lien on any Collateral pursuant to this Article 8. In each case as specified in this Article 8, the Administrative Agent will (and each Lender hereby authorizes the Administrative Agent to), at the Company’s expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents, to subordinate its interest therein, or to release such Loan Party from its obligations under the Collateral Agreement, in each case in accordance with the terms of the Loan Documents and this Article 8.
Appears in 1 contract
Samples: First Lien Credit Agreement (Victoria's Secret & Co.)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks Bank hereby irrevocably appoints (i) the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Senior Loan Documents, together with such actions and powers as are reasonably incidental thereto and (ii) the Collateral Agent as its agent and authorizes the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms of the Senior Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender The financial institutions serving as Agent the 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 such an Agent, and such Lender financial institutions and its their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Credit Party Subsidiary or any Affiliate thereof of any of the foregoing as if it they were not such Agent Agents hereunder. The Agents No Agent shall not have any duties or obligations except those expressly set forth in the Credit Senior Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Senior Loan Documents that such Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), 2.20 or 9.02) and (c) except as expressly set forth in the Credit Senior Loan Documents, no Agent shall have any duty to disclose, or and no Agent shall be liable for the failure to disclose, any information relating to the Company Borrower or any Subsidiary of the Subsidiaries that is communicated to or obtained by the bank financial institution serving as such Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.022.20 or 9.02) or in the absence of its own gross negligence or wilful misconductwillful misconduct (as determined by a court of competent jurisdiction by final and non-appealable judgment). No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower or a Lender, as applicable, and no such Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Credit Senior Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Senior Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit Senior 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 Credit Senior Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. Each Any Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all of its duties and exercise any and all of its rights and powers by or through any one or more sub-agents appointed by such Agent. Such Any Agent and any such sub-agent may perform any and all of its duties and exercise any and all of its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents any Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)Borrower, the Company, which shall not 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 Agent gives notice of its resignation, then the retiring Agent may (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing Banks, appoint a successor Agent (which shall be a bank financial institution with an office in New York, New York, or an Affiliate of any such bankfinancial institution). Upon the acceptance of its appointment as 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 Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After an Agent’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any Senior Loan Document or related agreement or any document furnished hereunder or thereunder. None of Each party hereto authorizes the institutions named as Syndication Agents or Documentation Agents Administrative Agent to enter into customary intercreditor agreements in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind connection with Securitizations and Factoring Transactions permitted under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Rite Aid Corp)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as administrative agent and collateral agent under the Loan Documents, and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender serving In addition, to the extent required under the laws of any jurisdiction other than the United States of America, each of the Lenders hereby grants to the Administrative Agent any required powers of attorney to execute any Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. [[NYCORP:3581742v17:3140D: 02/25/2016--08:35 PM]] Neither Borrower nor any Subsidiary shall have rights as Agent a third-party beneficiary of any such provisions. Each of the 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 such an Agent, and such Lender 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 any Credit Party either Borrower or any Subsidiary or other Affiliate thereof as if it such Person were not such an Agent hereunderhereunder and without any duty to account therefor to the Lenders. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no 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) no the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary powerspower, except discretionary rights and powers expressly contemplated by the Credit Loan Documents that such the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 10.02the 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 Credit Loan Documents, no the Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the Company Borrowers, any Subsidiary or any Subsidiary Affiliate of any of the foregoing that is communicated to or obtained by the bank Person serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.02the Loan Documents) or in the absence of its own gross negligence or wilful misconduct, as determined by a court of competent jurisdiction by a final and non-appealable judgment. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Borrower Agent, a Borrower FCX or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit DocumentLoan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent or satisfaction of any condition that expressly [[NYCORP:3581742v17:3140D: 02/25/2016--08:35 PM]] refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Each The Administrative Agent shall be entitled to rely uponrely, and shall not incur any liability for relying uponrelying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it in good faith to be genuine and to have been signed signed, sent or sent otherwise authenticated by the proper PersonPerson (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof). Each 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 in good faith to be made by the proper PersonPerson (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof), and shall not incur may act upon any liability for relying thereonsuch statement prior to receipt of written confirmation thereof. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by such the Administrative Agent. Such The Administrative Agent and any such sub-agent may perform any of and all its their duties and exercise its their rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 this Article shall apply to any such sub-agent and to the Related Parties of the Agents Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance terms of a successor Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Companyfrom its capacity as such. Upon any In connection with such resignation, the Administrative Agent, or, if the Administrative Agent shall have resignedgive notice of its intent to resign to the Lenders and the Borrowers. Upon receipt of any such notice of resignation, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)Borrowers, the Company, which shall not 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 resignationintent to resign, then the retiring Administrative Agent may (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksLenders, appoint a successor Agent 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 hereunderhereunder and under the other Loan Documents. After an The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed by the Borrowers and such successor. 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 [[NYCORP:3581742v17:3140D: 02/25/2016--08:35 PM]] retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders and the 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, including in its capacity as the Collateral Agent, provided that, solely for purposes of maintaining any security interest granted to the Administrative Agent or the Collateral Agent under any Collateral Document for the benefit of the Secured Parties, the retiring Administrative Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties and, in the case of any Collateral in the possession of the Administrative Agent, shall continue to hold such Collateral, in each case until such time as a successor Administrative Agent is appointed and accepts such appointment in accordance with this paragraph (it being understood and agreed that the retiring Administrative Agent shall have no duty or obligation to take any further action under any Collateral Document, including any action required to maintain the perfection of any such security interest), and (b) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, provided that (i) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (ii) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall also directly be given or made to each Lender. Following the effectiveness of the Administrative Agent’s resignation hereunderfrom its capacity as such, the provisions of this Article and Section 10.03 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents sub‑agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as AgentAdministrative Agent and in respect of the matters referred to in the proviso under clause (a) above. Each Lender acknowledges that it has, independently and without reliance upon either Agent, any person listed on the Agents cover page of this Agreement as an arranger, or any other Lender Lender, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon either Agent, any person listed on the Agents cover page of this Agreement as an arranger, or any other Lender Lender, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, Loan Document or any related agreement or any document furnished hereunder or thereunder. None Each Lender, by delivering its signature page to this Agreement on or prior to the Original Closing Date and funding its Loans on the Original Closing Date, or delivering its signature page to an Assignment and Assumption pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be [[NYCORP:3581742v17:3140D: 02/25/2016--08:35 PM]] delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Original Closing Date. Except with respect to the exercise of setoff rights of any Lender in accordance with Section 9.08 or with respect to a Lender’s right to file a proof of claim in an insolvency proceeding, no Secured Party shall have any right individually to realize upon any of the institutions Collateral or to enforce any Guarantee of the Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms thereof. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the foregoing provisions. The Secured Parties irrevocably authorize the Collateral Agent, at its option and in its discretion, to subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 6.02(c). Neither the Administrative Agent not the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Collateral Party in connection therewith, nor shall the Administrative Agent or the Collateral Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral. Notwithstanding anything herein to the contrary, neither the Syndication Agent nor any Person named as Syndication Agents or Documentation Agents in on the heading cover page of this Agreement shall, in their capacities as such, an arranger or a documentation agent shall have any duties or responsibilities obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as a Lender), but all such Persons shall have the benefit of the indemnities provided for hereunder. The provisions of this Article are solely for the benefit of the Agents and the Lenders, and neither Borrower nor any other Loan Party or Collateral Party shall have any rights as a third party beneficiary of any kind under this Agreementsuch provisions.
Appears in 1 contract
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent and Collateral Agent as its agent and authorizes the Agents Administrative Agent and Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent and Collateral Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder, and without any duty to account therefor to the Lenders. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no the Administrative Agent shall not be subject to any fiduciary or other implied dutiesduties to any Lender, regardless of whether a Default or Event of Default has occurred and is continuing, (b) no 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 Credit Loan Documents that such 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 10.029.02), and (cd) except as expressly set forth in the Credit Loan Documents, no the Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to Holdings, the Company Borrower or any Subsidiary of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Holdings, the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents subagents appointed by such the Administrative Agent; provided, however, that the Loan Parties shall make all payments under any Loan Document directly to the Administrative Agent. Such The Administrative Agent and any such sub-agent 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 and the provisions of Section 10.03 shall apply to any such sub-agent subagent and to the Related Parties of the Agents each Administrative Agent and any such sub-agentsubagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)Borrower, the Company, which shall not be unreasonably withheld) to appoint a successorsuccessor 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksLenders, 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 an the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents 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 Agents or Administrative 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 Agents or Administrative 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 Credit Document, any Loan Document or related agreement or any document furnished hereunder or thereunder. None Each Lender irrevocably agrees that the Administrative Agent may enter into any and all documents with respect to Collateral and the rights of the institutions named Secured Parties with respect thereto (including the First Lien Intercreditor Agreement or any Junior Lien Intercreditor Agreement, if applicable) as Syndication Agents or Documentation Agents contemplated by and in accordance with the heading provisions of this Agreement shalland the Security Documents without any further consent from any Secured Party, in their capacities as such, have any duties or responsibilities of any kind under this Agreementwhich terms shall be reasonably satisfactory to Administrative Agent.
Appears in 1 contract
Samples: First Lien Term Loan Credit Agreement (Select Medical Holdings Corp)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no 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) no 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 Credit Loan Documents that such 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 10.022.05(j) and Section 9.02), and (c) except as expressly set forth in the Credit Loan Documents, no the Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to Holdings, the Company Borrower or any Subsidiary of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.022.05(j) or Section 9.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Holdings, the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents subagents appointed by such the Administrative Agent. Such The Administrative Agent and any such sub-agent 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 and the provisions of Section 10.03 shall apply to any such sub-agent subagent and to the Related Parties of the Agents each Administrative Agent and any such sub-agentsubagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject 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 appointment Lenders and acceptance 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 successor 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 as provided 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 this paragraphthe 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 Banks Bank and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)Borrower, the Company, which shall not 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksBank, 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 an the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents 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 Agents 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 Agents 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 Credit Document, any Loan Document or related agreement or any document furnished hereunder or thereunder. None of The Lenders identified in this Agreement as the institutions named as Syndication Agents or Agent and the Documentation Agents in the heading of shall not have any right, power, obligation, liability, responsibility or duty under this Agreement shallother than those applicable to all Lenders. Without limiting the foregoing, in their capacities as such, neither the Syndication Agent nor the Documentation Agents shall have or be deemed to have a fiduciary relationship with any duties or responsibilities of any kind under this AgreementLender.
Appears in 1 contract
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and hereby irrevocably appoints each of the Issuing Banks hereby irrevocably Administrative Agent and the Collateral Agent as its agent and authorizes the Agents such Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents such Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender In addition, to the extent required under the laws of any jurisdiction, each of the Lenders hereby grants to the Collateral Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Xxxxxx’s behalf. Each of the banks serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not such an Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Company or any Subsidiary or other Affiliate thereof as if it were not such an Agent hereunderunder the Loan Documents. The Agents shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no Agent the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Loan Documents that such the applicable Agent is required to exercise in writing by the Required Lenders (or such other number or percentage or, in the case of the Lenders as shall be necessary under Collateral Documents, the circumstances as provided in Section 10.02)Required Secured Parties, and (c) except as expressly set forth in the Credit Loan Documents, no Agent the Agents shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the Company or any Subsidiary of its Subsidiaries that is communicated to or obtained by the bank banks serving as Agent Agents or any of its their respective Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage or, in the case of the Lenders as shall be necessary under Collateral Documents, the circumstances as provided in Section 10.02) Required Secured Parties, or in the absence of its own gross negligence or wilful willful misconduct. No Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower Company or a Lender, and no such Agent the 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 Credit Documentthis Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewithwith any Loan Document, (iii) qualification of (or lapse of any qualification of) any Account, Credit Card Receivable or Inventory 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 Credit Loan Document, (ivv) the validity, enforceability, effectiveness or genuineness of any Credit Loan Document or any other agreement, instrument or document, document or (vvi) the satisfaction of any condition set forth in Article IV 4 or elsewhere in any Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the applicable Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper Person. Each Agent of the Agents 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. Each Agent may consult with legal counsel (who may be counsel for any Credit Partythe 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. [[56622096068574]] Each Agent of the Agents may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Such Agent Each of the Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any either Agent may xxx resign at any time by notifying the Lenders, the Issuing Banks Lenders and the Company. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (in consultation withright, and with the consent of the 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 (unless an not to be unreasonably withheld and except during the continuance of a Specified Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01hereunder, when no consent shall be required), the Company, which shall not 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 Agent gives notice of its resignation, then the retiring Agent may (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksLenders, appoint a successor 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 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 Agent, and the retiring Agent shall be discharged from its duties and obligations hereunderunder the Loan Documents. The fees payable by the Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After an such Agent’s resignation hereunder, the provisions of this Article and Section 10.03 8.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Loan Document, any related agreement or any document furnished hereunder or thereunder. None 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 institutions named foregoing, in its capacity as Syndication Agents or Documentation Agents in the heading of this Agreement shallsuch, 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 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. Each of the Lenders hereby (a) authorizes and instructs the Collateral Agent to enter into the ABL Intercreditor Agreement and each other Acceptable Intercreditor Agreement, as applicable, pursuant to Sections 6.01 and 6.02 and (b) agrees that it will be bound by and will take no actions contrary to the provisions of such Acceptable Intercreditor Agreement. Notwithstanding anything to the contrary herein, the Arrangers shall not have any duties right, power, obligation, liability, responsibility or responsibilities of any kind duty under this Agreement., except in their respective capacities, as applicable, as the Administrative Agent or a Lender hereunder. [[56622096068574]] Each Secured Party irrevocably authorizes and instructs the Administrative Agent to, and the Administrative Agent shall, upon request of the Company:
Appears in 1 contract
Samples: First Lien Credit Agreement (Victoria's Secret & Co.)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no 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) no 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 Credit Loan Documents that such 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 10.022.05(j) and Section 9.02), and (c) except as expressly set forth in the Credit Loan Documents, no the Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to Holdings, the Company Borrower or any Subsidiary of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Holdings, the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents subagents appointed by such the Administrative Agent; provided, however, that the Loan Parties shall make all payments under any Loan Document directly to the Administrative Agent. Such The Administrative Agent and any such sub-agent 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 and the provisions of Section 10.03 shall apply to any such sub-agent subagent and to the Related Parties of the Agents each Administrative Agent and any such sub-agentsubagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)Borrower, the Company, which shall not be unreasonably withheld) to appoint a successorsuccessor 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksBank, 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 an the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents 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 Agents Administrative Agent, any Arranger or any other 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 will, independently and without reliance upon the Agents Administrative 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 Credit Document, any Loan Document or related agreement or any document furnished hereunder or thereunder. None Each Lender irrevocably agrees that the Administrative Agent may enter into any and all documents with respect to Collateral and the rights of the institutions named 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 Syndication Agents or Documentation Agents contemplated by and in accordance with the heading provisions of this Agreement shalland the Security Documents without any further consent from any Secured 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 their capacities this Agreement shall have any liability under this Agreement or any other Loan Document in its capacity as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Documentshereof, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such an Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party Company or any Affiliate thereof as if it were not such an Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Documentsherein. Without limiting the generality of the foregoing, (a) no 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) no 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 hereby that the Credit Documents that such Administrative Agent is required to exercise in writing 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 10.02Lenders), and (c) except as expressly set forth in herein, the Credit Documents, no Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the any Company or any Subsidiary that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.02Lenders) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Borrower Agent, a any Borrower or a Lender, and no such the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder under any Credit Document or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any the Credit Document, (iv) the validity, enforceability, effectiveness or genuineness of any 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 Credit Documentherein, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the a proper Person. Each An initial list of the proper 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 in good faith to be made by the proper Person, and shall not incur any liability for relying thereonthereon 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). Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such the Administrative Agent. Such The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrowers. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Borrowers, to appoint a successor which, so long as no Event of Default has occurred and is continuing pursuant continuing, shall be reasonably acceptable to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withheld) to appoint a successorBorrowers. 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksLenders, 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 Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Time Warner Inc)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks Bank hereby irrevocably appoints the Administrative Agent and Collateral Agent as its agent and authorizes the Agents Administrative Agent and Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent and Collateral Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder, and without any duty to account therefor to the Lenders. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no 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) no 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 Credit Loan Documents that such 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 10.022.05(j) and Section 9.02), and (cd) except as expressly set forth in the Credit Loan Documents, no the Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to Holdings, the Company Borrower or any Subsidiary of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Holdings, the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents subagents appointed by such the Administrative Agent; provided, however, that the Loan Parties shall make all payments under any Loan Document directly to the Administrative Agent. Such The Administrative Agent and any such sub-agent 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 and the provisions of Section 10.03 shall apply to any such sub-agent subagent and to the Related Parties of the Agents each Administrative Agent and any such sub-agentsubagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Bank and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)Borrower, the Company, which shall not be unreasonably withheld) to appoint a successorsuccessor 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksBank, 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 an the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents 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 Agents Administrative 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 Agents Administrative 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 Credit Document, any Loan Document or related agreement or any document furnished hereunder or thereunder. None Each Lender irrevocably agrees that the Administrative Agent may enter into any and all documents with respect to Collateral and the rights of the institutions named 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 Syndication Agents or Documentation Agents contemplated by and in accordance with the heading provisions of this Agreement shalland the Security Documents without any further consent from any Secured 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 their capacities this Agreement shall have any liability under this Agreement or any other Loan Document in its capacity as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB each Agent is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, Agent on behalf of the Lenders and, where applicable, the Issuing BanksLenders. Each of the Lenders and each of the Issuing Banks hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms of the Credit Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. Any Lender serving as The Administrative Agent hereunder shall have is hereby expressly authorized by the same rights and powers in its capacity as a Lender as Lenders, without hereby limiting any other Lender and may exercise the same as though it were not such Agent, and such Lender and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party or any Affiliate thereof as if it were not such Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Credit Documents. Without limiting the generality of the foregoingimplied authority, (a) no Agent shall be subject to any fiduciary or receive on behalf of the Lenders all payments of principal of and interest on the Loans and all other implied dutiesamounts due to the Lenders hereunder, regardless and promptly to distribute to each Lender its proper share of whether a Default has occurred and is continuing, each payment so received; (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent is required to exercise in writing by the Required Lenders (or such other number or percentage give notice on behalf of each of the Lenders as shall be necessary under to the circumstances as provided Borrowers of any Event of Default specified in Section 10.02), this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) except to distribute to each Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as expressly set forth in the Credit Documents, no Agent shall have any duty to disclose, or be liable for the failure to disclose, any information relating to the Company or any Subsidiary that is communicated to or obtained received by the bank serving as Administrative Agent. Neither any Agent or nor any of its Affiliates in any capacity. No Agent directors, officers, employees or agents shall be liable as such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its his own gross negligence or wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower or a Lender, and no such Agent shall 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 Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) or be required to ascertain or to make any inquiry concerning the performance or observance by any Borrower of any of the covenantsterms, 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 agreements. The Administrative Agent shall in any Credit Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit Document or any other agreement, instrument or documentall cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Credit Documentor, other than to confirm receipt of items 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. The Administrative Agent shall, in the absence of knowledge to be delivered to such Agent. Each Agent shall the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for any Credit Party), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Such Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Administrative Agent, instrument or, if the Administrative Agent shall have resigned, the Required Lenders, shall have the right (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withheld) to appoint a successor. If no successor shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
Samples: 364 Day Credit Agreement (Infinity Broadcasting Corp /De/)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB each Agent is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, Agent on behalf of the Lenders and, where applicable, the Issuing BanksLenders. Each of the Lenders and each of the Issuing Banks hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms of the Credit Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. Any Lender serving as The Administrative Agent hereunder shall have is hereby expressly authorized by the same rights and powers in its capacity as a Lender as Lenders, without hereby limiting any other Lender and may exercise the same as though it were not such Agent, and such Lender and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party or any Affiliate thereof as if it were not such Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Credit Documents. Without limiting the generality of the foregoing, implied authority (a) no Agent shall be subject to any fiduciary or receive on behalf of the Lenders all payments of principal of and interest on the Loans and all other implied dutiesamounts due to the Lenders hereunder, regardless and promptly to distribute to each Lender its proper share of whether a Default has occurred and is continuingeach payment so received, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent is required to exercise in writing by the Required Lenders (or such other number or percentage give notice on behalf of each of the Lenders as shall be necessary under to the circumstances as provided Borrowers of any Event of Default specified in Section 10.02), this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder and (c) except to distribute to each Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as expressly set forth in the Credit Documents, no Agent shall have any duty to disclose, or be liable for the failure to disclose, any information relating to the Company or any Subsidiary that is communicated to or obtained received by the bank serving as Administrative Agent. Neither any Agent or nor any of its Affiliates in any capacity. No Agent directors, officers, employees or agents shall be liable as such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its his own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower or a Lender, and no such Agent shall 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 Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) or be required to ascertain or to make any inquiry concerning the performance or observance by any Borrower of any of the covenantsterms, 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 agreements. The Administrative Agent shall in any Credit Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit Document or any other agreement, instrument or documentall cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Credit Documentor, other than to confirm receipt of items 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. The Administrative Agent shall, in the absence of knowledge to be delivered to such Agent. Each Agent shall the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper PersonPerson or Persons. Each Neither the Agents nor any of their directors, officers, employees or agents shall have any responsibility to any Borrower on account of the failure of or delay in performance or breach by any 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 Agent, any other Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. The Administrative Agent also may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it in good faith with respect to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for any Credit Party), independent accountants and other experts selected by it, 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. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Such Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of Lenders hereby acknowledge that the preceding paragraphs and Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of Section 10.03 this Agreement unless it shall apply be requested in writing to any such sub-agent and to do so by the Related Parties of the Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraphbelow, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrowers. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withheld) to appoint from the Lenders 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksLenders, appoint from the Lenders a successor Administrative Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate affiliate of any such bank, which successor shall be acceptable to Viacom (such acceptance not to be unreasonably withheld). Upon the acceptance of its any appointment as Administrative Agent hereunder by a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Administrative Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After an the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section 10.03 9.5 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Administrative Agent. With respect to the Loans made by them hereunder, the Agents in their individual capacity and not as Agents shall have the same rights and powers as any other Lender and may exercise the same as though they were not Agents, and 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 of their respective Subsidiaries or any Affiliate thereof as if they were not Agents. Each Lender agrees (i) to reimburse the Administrative Agent in the amount of its PRO RATA share (based on its Total Facility Percentage or, after the date on which the Loans shall have been paid in full, based on its Total Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders by the Administrative Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by or on behalf of any Borrower and (ii) to indemnify and hold harmless the Administrative Agent and any of its directors, officers, employees or agents, in the amount of such PRO RATA share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement, to the extent the same shall not have been reimbursed by or on behalf of Viacom; PROVIDED, that no Lender shall be liable to the Administrative Agent or any such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of the Administrative Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents 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 Credit Document, any related agreement or any document furnished hereunder or thereunder. None of Neither the institutions named as Syndication Agents or Agent, the Co-Documentation Agents in Agents, the heading of this Agreement shall, in their capacities as such, Joint Lead Arrangers nor any managing agent shall have any duties or responsibilities of any kind under this Agreementhereunder in its capacity as such.
Appears in 1 contract
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the entities named as the Administrative Agent and the London Agent in the heading of this Agreement, and their successors in such capacities, to serve as the Administrative Agent and the London Agent, respectively, under the Loan Documents and authorizes the Agents to take such actions on its behalf and to exercise such powers as are delegated to the Agents by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender Person serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not such an Agent, and such Lender Person and its Affiliates may accept deposits from, lend money to to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Credit Party Parent or any Subsidiary or other Affiliate thereof as if it such Person were not such an Agent hereunderhereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Agents shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no Agent the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuingcontinuing (and it is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Agents is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties), (b) no Agent the Agents shall not have any duty to take any discretionary action or to exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Loan Documents that such Agent is the Agents are required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary necessary, or as the applicable Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 10.029.02); provided that no Agent shall be required to take any action that, in its opinion, could expose such Agent to liability or be contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Credit Loan Documents, no Agent the Agents shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the Company Parent or any Subsidiary or other Affiliate thereof that is communicated to or obtained by the bank serving as Agent them or any of its their Affiliates in any capacity. No Agent The 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 the Lenders as shall be necessary necessary, or as the applicable Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 10.029.02) or in the absence of its their own gross negligence or wilful misconductwillful misconduct (such absence to be presumed for purposes of this Article VIII unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). No Each Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to such Agent by the Borrower Agent, a Borrower Parent or a Lender, and no such Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Credit Loan Document, including any representation by any Incremental Lender in any Incremental Facility Agreement (it being understood and agreed that each Agent may rely, and shall incur no liability for relying, upon such representation), (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit DocumentLoan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent, or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to such Agent. Notwithstanding anything herein to the contrary, the Agents shall not have any liability arising from any confirmation of any Revolving Credit Exposure or the component amounts thereof, any determination of the Exchange Rate, the LC Exchange Rate or the US Dollar Equivalent or any determination of any rate that reflects the costs to any Lenders of making or maintaining any Loans as contemplated by Section 2.14. Each Agent shall be entitled to rely uponrely, and shall not incur any liability for relying uponrelying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it in good faith to be genuine and to have been signed signed, sent or sent otherwise authenticated by the proper PersonPerson (including, if applicable, a Financial Officer). Each Agent also may rely rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper PersonPerson (including, if applicable, a Financial Officer), and may act upon any such statement prior to receipt of written confirmation thereof. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, amendment, extension or renewal 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 not incur any liability for relying thereonhave received notice to the contrary from such Lender or such Issuing Bank sufficiently in advance to the making of such Loan or the issuance, amendment, extension or renewal of such Letter of Credit. Each Agent may consult with legal counsel (who may be counsel for any Credit PartyBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by such Agentit. Such Each Agent and any such sub-agent may perform any of and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 this Article shall apply to any such sub-agent and to the Related Parties of the Agents each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent or the London Agent, as applicable. No Agent shall be responsible for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. Subject to the appointment and acceptance terms of a successor Agent as provided in this paragraph, any each Agent may resign at any time by notifying the Lenders, the Issuing Banks and the CompanyParent. Upon receipt of any such notice of resignation, the Required Lenders (in the case of a resignation of the Administrative Agent, or, if ) or the Administrative Agent shall have resigned, (in the Required Lenders, case of a resignation by the London Agent) shall have the right (right, in consultation withwith Parent, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not 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 Agent gives notice of its resignation, then the retiring Agent may (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing Banks, appoint a successor Agent Agent, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. If any Agent shall be a Defaulting Lender pursuant to clause (e) of the definition of such term, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to Parent and such Agent remove such Agent in its capacity as such and, in consultation with Parent, appoint a successor. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Agent, as the case may be, and the such retiring or removed Agent shall be discharged from its duties and obligations hereunderhereunder and under the other Loan Documents. The fees payable by the Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. Notwithstanding the foregoing, in the event (a) no successor Agent to a retiring Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its intent to resign, the retiring Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and Parent or (b) no successor to a removed Agent shall have been so appointed and shall have accepted such appointment by the day that is 30 days following of the issuance of a notice of removal, the removal shall become effective on such 30th day, and on the date of effectiveness of such resignation or removal, as the case may be, (i) the retiring or removed Agent shall be discharged from its duties and obligations hereunder and under the Loan Documents, and (ii) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Agent; provided that (A) all payments required to be made hereunder or under any other Loan Documents to the retiring or removed Agent for the account of any Person other than such Agent shall be made directly to such Person and (B) all notices and other communications required or contemplated to be given or made to the retiring or removed Agent shall also directly be given or made to the other Agent, and each Lender and each Issuing bank. After an Agent’s resignation hereunderor removal hereunder and under the other Loan Documents, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring or removed Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon the Agents either Agent, any Arranger, any Manager 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 the Agents either Agent, any Arranger, any Manager 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 Credit Document, Loan Document or any related agreement or any document furnished hereunder or thereunder. None Each Lender and Issuing Bank, by delivering its signature page to this Agreement and, in the case of any Lender, funding its Loans on the institutions named Effective Date, or delivering its signature page to an Assignment and Assumption, an Incremental Facility Agreement or an Issuing Bank Agreement pursuant to which it shall become a Lender or an Issuing Bank, as the case may be, hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date. Notwithstanding anything herein to the contrary, no Arranger, Manager, Syndication Agents Agent or Documentation Agents in the heading of this Agreement shall, in their capacities as such, Agent shall have any duties or responsibilities of any kind obligations under this AgreementAgreement 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 expense reimbursement and indemnities to the extent provided for hereunder.
Appears in 1 contract
Samples: Credit Agreement (TripAdvisor, Inc.)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of hereof and by the Credit other Financing Documents, together with such actions and powers as are reasonably incidental thereto. Any WestDeutsche Landesbank Girozentrale, New York Branch is hereby appointed Syndication Agent hereunder and under the other Financing Documents and each Lender hereby authorizes Syndication Agent to act as its agent in accordance with the terms hereof and the other Financing Documents. Dresdner Bank A.G. is hereby appointed Documentation Agent hereunder, and each Lender hereby authorizes Documentation Agent to act as its agent in accordance with the terms hereof and the other Financing Documents. As of the Closing Date, all the respective obligations of WestDeutsche Landesbank Girozentrale, New York Branch, in its capacity as Syndication Agent, and Dresdner Bank A.G., in its capacity as Documentation Agent, shall terminate. 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 such the Administrative Agent, and such Lender bank and its Affiliates 133 142 may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Company or any other Affiliate thereof as if it were not such the Administrative Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Documentsherein. Without limiting the generality of the foregoing, (a) no 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) no 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 hereby that the Credit Documents that such Administrative Agent is required to exercise in writing by the Required Majority Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in this Agreement, the Credit Documents, no Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the Company or any Subsidiary that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Majority Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or wilful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Borrower Agent, a Borrower Company or a Lender, and no such 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 Credit other Financing Document, (ii) the contents of any certificate, report or other document delivered hereunder hereunder, under any other Financing Document or in connection herewithherewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or in any Credit other Financing Document, (iv) the validity, enforceability, effectiveness or genuineness hereof, of any Credit other Financing Document or of any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein or in any Credit other Financing Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe 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. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Such Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, shall have the right (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withheld) to appoint a successor. If no successor shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Documentshereof, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such an Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party Company or any Affiliate thereof as if it were not such an Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Documentsherein. Without limiting the generality of the foregoing, (a) no 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) no 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 hereby that the Credit Documents that such Administrative Agent is required to exercise in writing 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 10.02Lenders), and (c) except as expressly set forth in herein, the Credit Documents, no Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the any Company or any Subsidiary that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.02Lenders) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Borrower Agent, a any Borrower or a Lender, and no such the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder under any Credit Document or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any the Credit Document, (iv) the validity, enforceability, effectiveness or genuineness of any 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 Credit Documentherein, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the a proper Person. Each An initial list of the proper 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 in good faith to be made by the proper Person, and shall not incur any liability for relying thereonthereon 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). Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such the Administrative Agent. Such The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrowers. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Borrowers, to appoint a successor which, so long as no Event of Default has occurred and is continuing pursuant continuing, shall be reasonably acceptable to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withheld) to appoint a successorBorrowers. 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksLenders, 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 Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After an the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them 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 Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as The Co-Syndication Agents or and Co-Documentation Agents in the heading of this Agreement shall, in their capacities as such, shall not have any duties or responsibilities of under any kind under this AgreementCredit Document in their capacity as such.
Appears in 1 contract
Samples: Credit Agreement (Time Warner Inc)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and hereby irrevocably appoints each of the Issuing Banks hereby irrevocably 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 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 Agents such Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 Agreement and the Security Documents. Each person serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not such an Agent, and such Lender person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Loan Party or any Affiliate thereof of their respective Affiliates as if it were not such an Agent hereunder. The Agents No Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuingcontinuing and, without limiting the generality of the foregoing, the use of the term “agent” in this Agreement or the other Loan Documents with reference to the Administrative Agent or the Collateral 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 us used merely as a matter of market custom and is intended to create or reflect only an administrative relationship between independent contracting parties, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Loan Documents that 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 required under the circumstances as provided in Section 10.029.08), and (c) except as expressly set forth in the Credit Loan Documents, no Agent shall have any duty to disclose, or nor shall it be liable for the failure to disclose, any information relating to any of the Company Loan Parties or any Subsidiary of their respective Affiliates that is communicated to or obtained by the bank person serving as an Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary required under the circumstances as provided in Section 10.02) 9.08), or with respect to any action requested to be taken pursuant to Section 6.09 of the LNG Entities Guarantee and Collateral Agreement or with respect to any action requested to be taken pursuant to Section 3.6 of the Depositary Agreement, or by reason of a Crest Remedy Instruction (as defined in the Depositary Agreement), or in the absence of its own gross negligence or wilful misconductwillful misconduct as determined by the non-appealable judgment of a court of competent jurisdiction. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof (which notice shall state the following: “This is a Notice of Default under that certain $250,000,000 Credit Agreement, dated as of August 15, 2008, among Cheniere Common Units Holding, LLC, a Delaware limited liability company, the Loan Parties from time to time party thereto, the Lenders time to time party thereto and The Bank of New York Mellon”) is given to such Agent by the Borrower Agent, a Borrower or a Lender, and no such Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for any Credit Party), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Such Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and Notwithstanding anything to the Related Parties of the Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided contrary in this paragraphAgreement, any Agent may resign at any time each Lender, by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, shall have the right (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant delivering its signature page to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withheld) to appoint a successor. If no successor shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New Yorkthis Agreement, or an Affiliate of any such bank. Upon Assignment and Acceptance, and funding its Loans on the acceptance of Closing Date or its appointment Delayed Draw Loans on or prior to the Maturity Date, as Agent hereunder by a successorthe case may be, such successor shall succeed be deemed to have acknowledged receipt of, and consented to and become vested with all the rightsapproved, powers, privileges each Loan Document and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.each other
Appears in 1 contract
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Without limiting the generality of the foregoing, 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 Canadian Interim Order, to the Final Order and the Canadian Final Order to be negotiated between the Borrowers, the Agents and the 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Parent Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no 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) no 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 Credit Loan Documents that such the Administrative Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Credit Loan Documents, no the Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the Company Parent Borrower or any Subsidiary of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall not be deemed to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Borrower Agent, a Parent Borrower or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partyof the 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. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such the Administrative Agent. Such The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor to the Administrative Agent as provided in this paragraph, any the Administrative Agent may resign at any time by notifying the other Agents, the Lenders, the Issuing Banks Bank and the CompanyParent Borrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (in consultation withright, and with the consent of the Parent Borrower (unless an Event of Default has occurred and is continuing pursuant such consent not to clause (g) or (h) of Section 7.01), the Company, which shall not 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksBank, 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 an the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 Credit Document, any Loan Document or related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents in the heading The provisions of this Agreement Article shall apply to the Collateral Agent as though named herein as the Administrative Agent. Notwithstanding any other provision contained herein, neither the Arranger nor the Syndication Agent shall, in their capacities capacity as such, have any duties or responsibilities of any kind under this Agreement.Agreement or the other Loan Documents. 107
Appears in 1 contract
Samples: Credit Agreement (Pliant Corp)
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMCB each Agent is hereby appointed to act as Administrative Agent, and JPMEL is hereby appointed to act as London Agent, Agent on behalf of the Lenders and, where applicable, the Issuing BanksLenders. Each of the Lenders and each of the Issuing Banks hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms of the Credit Documentsand provisions hereof, together with such actions and powers as are reasonably incidental thereto. Any Lender serving as The Administrative Agent hereunder shall have is hereby expressly authorized by the same rights and powers in its capacity as a Lender as Lenders, without hereby limiting any other Lender and may exercise the same as though it were not such Agent, and such Lender and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party or any Affiliate thereof as if it were not such Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Credit Documents. Without limiting the generality of the foregoingimplied authority, (a) no Agent shall be subject to any fiduciary or receive on behalf of the Lenders all payments of principal of and interest on the Loans and all other implied dutiesamounts due to the Lenders hereunder, regardless and promptly to distribute to each Lender its proper share of whether a Default has occurred and is continuing, each payment so received; (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent is required to exercise in writing by the Required Lenders (or such other number or percentage give notice on behalf of each of the Lenders as shall be necessary under to the circumstances as provided Borrowers of any Event of Default specified in Section 10.02), this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) except to distribute to each Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as expressly set forth in the Credit Documents, no Agent shall have any duty to disclose, or be liable for the failure to disclose, any information relating to the Company or any Subsidiary that is communicated to or obtained received by the bank serving as Administrative Agent. Neither any Agent or nor any of its Affiliates in any capacity. No Agent directors, officers, employees or agents shall be liable as such for any action taken or not taken omitted by it with the consent any of them except for its or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its his own gross negligence or wilful willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower or a Lender, and no such Agent shall 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 Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) or be required to ascertain or to make any inquiry concerning the performance or observance by any Borrower of any of the covenantsterms, 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 agreements. The Administrative Agent shall in any Credit Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit Document or any other agreement, instrument or documentall cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Credit Documentor, other than to confirm receipt of items 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. The Administrative Agent shall, in the absence of knowledge to be delivered to such Agent. Each Agent shall the contrary, be entitled to rely upon, and shall not incur on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, instrument or document or other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper PersonPerson or Persons. Each Neither the Agents nor any of their directors, officers, employees or agents shall have any responsibility to any Borrower on account of the failure of or delay in performance or breach by any 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 Agent, any other Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. The Administrative Agent also may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon any statement made to it orally or by telephone and believed the advice of legal counsel selected by it in good faith with respect to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for any Credit Party), independent accountants and other experts selected by it, 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. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Such Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of Lenders hereby acknowledge that the preceding paragraphs and Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of Section 10.03 this Agreement unless it shall apply be requested in writing to any such sub-agent and to do so by the Related Parties of the Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as AgentRequired Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraphbelow, any the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrowers. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withheld) to appoint from the Lenders 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksLenders, appoint from the Lenders a successor Administrative Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate affiliate of any such bank, which successor shall be acceptable to Viacom (such acceptance not to be unreasonably withheld). Upon the acceptance of its any appointment as Administrative Agent hereunder by a successorsuccessor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, Administrative Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After an the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section 10.03 9.5 shall continue in effect for the its benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them it while it was acting as Administrative Agent. With respect to the Loans made by them hereunder, the Agents in their individual capacity and not as Agents shall have the same rights and powers as any other Lender and may exercise the same as though they were not Agents, and 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 of their respective Subsidiaries or any Affiliate thereof as if they were not Agents. Each Lender agrees (i) to reimburse the Administrative Agent in the amount of its pro rata share (based on its Total Facility Percentage or, after the date on which the Loans shall have been paid in full, based on its Total Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders by the Administrative Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by or on behalf of any Borrower and (ii) to indemnify and hold harmless the Administrative Agent and any of its directors, officers, employees or agents, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement, to the extent the same shall not have been reimbursed by or on behalf of Viacom; provided, that no Lender shall be liable to the Administrative Agent or any such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of the Administrative Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents 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 Credit Document, any related agreement or any document furnished hereunder or thereunder. None of Neither the institutions named as Syndication Agents or Agent, the Co-Documentation Agents in Agents, the heading of this Agreement shall, in their capacities as such, Joint Lead Arrangers nor any managing agent shall have any duties or responsibilities of any kind under this Agreementhereunder in its capacity as such.
Appears in 1 contract
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Documentshereof, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such an Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party Company or any Affiliate thereof as if it were not such an Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Documentsherein. Without limiting the generality of the foregoing, (a) no 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) no 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 hereby that the Credit Documents that such Administrative Agent is required to exercise in writing 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 10.02Lenders), and (c) except as expressly set forth in herein, the Credit Documents, no Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to the any Company or any Subsidiary that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.02Lenders) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by the Borrower Agent, a any Borrower or a Lender, and no such the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder under any Credit Document or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Document, (iv) the validity, enforceability, effectiveness or genuineness of any 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 Credit Documentherein, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the a proper Person. 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 An initial list of the proper Person, and shall not incur any liability for relying thereonPersons with respect to the Borrowers appears on Schedule 8. Each Agent may consult with legal counsel (who may be counsel for any Credit Party), independent accountants and other experts selected by it, and Schedule 8 shall not be liable for any action taken altered except in writing by a Person appearing thereon (or not taken by it in accordance with a successor to such Person occupying the advice of any such counsel, accountants or experts. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Such Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Partiesequivalent office). The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, shall have the right (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not be unreasonably withheld) to appoint a successor. If no successor shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.also
Appears in 1 contract
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each Issuing Bank hereby irrevocably appoints (i) 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 Issuing Banks hereby irrevocably Senior Loan Documents, together with such actions and powers as are reasonably incidental thereto and (ii) each Collateral Agent as its agent and authorizes the Collateral Agents to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agents by the terms of the Credit Senior Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender The financial institutions serving as Agent the 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 such an Agent, and such Lender financial institutions and its their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Credit Party Subsidiary or any Affiliate thereof of any of the foregoing as if it they were not such Agent Agents hereunder. The Agents No Agent shall not have any duties or obligations except those expressly set forth in the Credit Senior Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Senior Loan Documents that such Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), 2.20 or 9.02) and (c) except as expressly set forth in the Credit Senior Loan Documents, no Agent shall have any duty to disclose, or and no Agent shall be liable for the failure to disclose, any information relating to the Company Borrower or any Subsidiary of the Subsidiaries that is communicated to or obtained by the bank financial institution serving as such Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.022.20 or 9.02) or in the absence of its own gross negligence or wilful misconductmisconduct (as determined by a court of competent jurisdiction by final and non-appealable judgment). No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower Agent, a Borrower or a Lender, as applicable, and no such Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Credit Senior Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Senior Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit Senior 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 Credit Senior Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. Each Any Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Agent may perform any and all of its duties and exercise any and all of its rights and powers by or through any one or more sub-agents appointed by such Agent. Such Any Agent and any such sub-agent may perform any and all of its duties and exercise any and all of its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Agents any Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)Borrower, the Company, which shall not 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 Agent gives notice of its resignation, then the retiring Agent may (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing Banks, appoint a successor Agent (which shall be a bank financial institution with an office in New York, New York, or an Affiliate of any such bankfinancial institution). Upon the acceptance of its appointment as 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 Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After an Agent’s 's resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document, any Senior Loan Document or related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agents or Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Rite Aid Corp)
The Agents. 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, where applicable, the Issuing Banks. Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agents Administrative Agent by the terms of the Credit Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Lender 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 such the Administrative Agent, and such Lender bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party the Borrower or any Subsidiary or other Affiliate thereof as if it were not such the Administrative Agent hereunder. The Agents Administrative Agent shall not have any duties or obligations except those expressly set forth in the Credit Loan Documents. Without limiting the generality of the foregoing, (a) no 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) no 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 Credit Loan Documents that such 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 10.029.02), and (c) except as expressly set forth in the Credit Loan Documents, no the Administrative Agent shall not have any duty to disclose, or and shall not be liable for the failure to disclose, any information relating to Holdings, the Company Borrower or any Subsidiary of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. No 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 10.029.02) or in the absence of its own gross negligence or wilful willful misconduct. No The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to such the Administrative Agent by Holdings, the Borrower Agent, a Borrower or a Lender, and no such 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 Credit Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder thereunder or in connection herewiththerewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit 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 Credit Loan Document, other than to confirm receipt of items expressly required to be delivered to such the Administrative Agent. Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each The Administrative 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. Each The Administrative Agent may consult with legal counsel (who may be counsel for any Credit Partythe Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Each The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents subagents appointed by such the Administrative Agent; provided, however, that the Loan Parties shall make all payments under any Loan Document directly to the Administrative Agent. Such The Administrative Agent and any such sub-agent 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 and the provisions of Section 10.03 shall apply to any such sub-agent subagent and to the Related Parties of the Agents each Administrative Agent and any such sub-agentsubagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks Lenders and the CompanyBorrower. Upon any such resignation, the Administrative Agent, or, if the Administrative Agent shall have resigned, the Required Lenders, Lenders shall have the right (right, in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01)Borrower, the Company, which shall not be unreasonably withheld) to appoint a successorsuccessor 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 (in consultation withmay, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (g) or (h) of Section 7.01), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders and the Issuing BanksLenders, 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 an the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents 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 Agents 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 Agents 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 Credit Document, any Loan Document or related agreement or any document furnished hereunder or thereunder. None Each Lender irrevocably agrees that the Administrative Agent may enter into any and all documents with respect to Collateral and the rights of the institutions named Secured Parties with respect thereto (including the Intercreditor Agreement or any Pari Passu Intercreditor Agreement or Junior Lien Intercreditor Agreement, if applicable) as Syndication Agents or Documentation Agents contemplated by and in accordance with the heading provisions of this Agreement shalland the 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 their capacities this Agreement shall have any liability under this Agreement or any other Loan Document in its capacity as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
