Common use of thereto Clause in Contracts

thereto. The Administrative Agent shall not be responsible for any gross negligence or willful misconduct of any of the co-agents or subagents or attorneys-in-fact selected by it with reasonable care. (c) None of the Syndication Agent, the Documentation Agent and the Lead Arranger shall have any powers or discretion under this Agreement or any of the other Loan Documents, and the Borrower, the Administrative Agent and each of the Lender Parties hereby acknowledge that none of the Syndication Agent, the Documentation Agent or the Lead Arranger has any liability under this Agreement or under any of the other Loan Documents. (d) The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of a Default or Event of Default unless the Administrative Agent has received written notice from a Lender Party or the Borrower specifying such Default or Event of Default and stating that such notice is a "Notice of Default". In the event that the Administrative Agent receives such a notice of the occurrence of a Default or Event of Default, the Administrative Agent shall give prompt notice thereof to the Lender Parties. The Administrative Agent shall (subject to Section 7.02) take such action with respect to such Default or Event of Default as shall reasonably be directed by the Required Lenders; provided that, unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interest of the Lender Parties including, without limitation, serving notice of the occurrence of a Default or Event of Default on the Collateral Trustee.

thereto. The Administrative Agent shall not be responsible for any gross negligence or willful misconduct of any of the co-agents or subagents or attorneys-in-fact selected by it with reasonable care. (c) None of the Syndication Agent, the Documentation Agent and the Lead Arranger shall have any powers or discretion under this Agreement or any of the other Loan Documents, and the Borrower, the Administrative Agent and each of the Lender Parties hereby acknowledge that none of the Syndication Agent, the Documentation Agent or the Lead Arranger has any liability under this Agreement or under any of the other Loan Documents. (d) The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of a Default or Event of Default unless the Administrative Agent has received written notice from a Lender Party or the Borrower specifying such Default or Event of Default and stating that such notice is a "Notice of Default". In the event that the Administrative Agent receives such a notice of the occurrence of a Default or Event of Default, the Administrative Agent shall give prompt notice thereof to the Lender Parties. The Administrative Agent shall (subject to Section 7.02) take such action with respect to such Default or Event of Default as shall reasonably be directed by the Required Lenders; provided that, unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such actionwarrants, with respect to such Default each Account shown as an Eligible Account in a Borrowing Base Report, that: (i) it is genuine and in all respects what it purports to be; (ii) it arises out of a completed, bona fide sale and delivery of goods or Event rendition of Default as it shall deem advisable services in the best interest ordinary course of business, and substantially in accordance with any purchase order, contract or other document relating thereto; (iii) it is for a sum certain, maturing as stated in the applicable invoice, a copy of which has been furnished or is available to the Administrative Agent on request; (iv) it is not subject to any offset, Lien (other than the Administrative Agent’s Lien), deduction, defense, dispute, counterclaim or other adverse condition except as arising in the ordinary course of business and disclosed to the Administrative Agent or reflected in the amount thereof in the Borrowing Base; and it is absolutely owing by the Account Debtor, without contingency of any kind; (v) no purchase order, agreement, document or Applicable Law restricts assignment of the Lender Parties includingAccount to the Administrative Agent (except to the extent, without limitationunder the UCC, serving notice the restriction is ineffective), and the Borrower is the sole payee or remittance party shown on the invoice; (vi) no extension, compromise, settlement, modification, credit, deduction or return has been authorized or is in process with respect to the Account, except discounts or allowances granted in the ordinary course of business for prompt payment that are reflected on the face of the occurrence invoice related thereto and in the reports submitted to the Administrative Agent hereunder; and (vii) to the best of the Borrower’s knowledge, (i) there are no facts or circumstances that are reasonably likely to impair the enforceability or collectability of such Account; (ii) the Account Debtor had the capacity to contract when the Account arose, continues to meet the Borrower’s customary credit standards, is Solvent, is not contemplating or subject to a Default proceeding under any Debtor Relief Law, and has not failed, or Event of Default suspended or ceased doing business; and (iii) there are no proceedings or actions threatened or pending against any Account Debtor that could reasonably be expected to have a material adverse effect on the Collateral TrusteeAccount Debtor’s financial condition.

thereto. The provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders (including the Swingline Lender and the Issuing Bank), and neither the Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” as used herein or in any other Loan Documents (or any similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct as determined by a final nonappealable judgment of a court of competent jurisdiction. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any gross negligence duty to ascertain or willful misconduct inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any of the co-agents covenants, agreements or subagents other terms or attorneys-in-fact selected by it with reasonable care. conditions set forth in any Loan Document, (civ) None the validity, enforceability, effectiveness or genuineness of the Syndication Agent, the Documentation Agent and the Lead Arranger shall have any powers or discretion under this Agreement Loan Document or any other agreement, instrument or document, or (v) the satisfaction of the any condition set forth in Article IV or elsewhere in any Loan Document, other Loan Documents, and the Borrower, than to confirm receipt of items expressly required to be delivered to the Administrative Agent and each of the Lender Parties hereby acknowledge that none of the Syndication Agent, the Documentation Agent or the Lead Arranger has any liability under this Agreement or under any of the other Loan Documents. (d) The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of a Default or Event of Default unless the Administrative Agent has received written notice from a Lender Party or the Borrower specifying such Default or Event of Default and stating that such notice is a "Notice of Default". In the event that the Administrative Agent receives such a notice of the occurrence of a Default or Event of Default, the Administrative Agent shall give prompt notice thereof to the Lender Parties. The Administrative Agent shall (subject be entitled to Section 7.02) take such action with respect rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to such Default be genuine and to have been signed or Event of Default as shall reasonably be directed sent by the Required Lenders; provided thatproper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, unless and until shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall have received such directionsapply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may (but resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, subject to the approval of the Borrower, which approval shall not be obligated tounreasonably withheld or delayed, to appoint a successor; provided that the Borrower shall be deemed to have consented to any such appointment unless it shall object thereto by written notice to the Administrative Agent within ten (10) take Business Days after having received notice thereof. If no successor shall have been so appointed by the Required Lenders and shall have accepted such actionappointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, subject to the approval of the Borrower, such approval not to be unreasonably withheld, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or refrain an Affiliate of any such bank; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof). Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its 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 and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not investments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender shall, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder and in deciding whether or to the extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder. None of the Lenders, if any, identified in this Agreement as a “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, none of such action, Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to such Default or Event of Default the relevant Lenders in their respective capacities as Syndication Agent as it shall deem advisable makes with respect to the Administrative Agent in the best interest preceding paragraph. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Lender Parties includingAdministrative Agent) authorized to act for, without limitation, serving notice any other Lender. The Administrative Agent shall have the exclusive right on behalf of the occurrence Lenders to enforce the payment of a Default the principal of and interest on any Loan after the date such principal or Event interest has become due and payable pursuant to the terms of Default on the Collateral Trusteethis Agreement.

thereto. The Administrative Agent Seller shall comply with all requirements of the applicable Custodial Agreement to which it is a party with respect to each Subject Mortgage Loan, including the delivery to Custodian of all required Mortgage Files. Seller shall (a) not be responsible for assign, sell, transfer, pledge, hypothecate, grant, create, incur, assume or suffer or permit to exist any gross negligence security interest in or willful misconduct Lien (other than Permitted Liens) on any Purchased Asset to or in favor of any of the co-agents or subagents or attorneys-in-fact selected by it with reasonable care. Person other than Buyer, (b) defend such Purchased Asset against, and take such action as is necessary to remove, any such Lien, and (c) None defend the right, title and interest of Buyer in and to all Purchased Assets against the Syndication Agentclaims and demands of all Persons whomsoever. Notwithstanding the foregoing, the Documentation Agent and the Lead Arranger shall have if Seller grants a Lien on any powers or discretion under Purchased Asset in violation of this Agreement Section 12(gg) or any of the other Loan DocumentsProgram Document, and the Borrower, the Administrative Agent and each of the Lender Parties hereby acknowledge that none of the Syndication Agent, the Documentation Agent or the Lead Arranger has any liability under this Agreement or under any of the other Loan Documents. (d) The Administrative Agent Seller shall not be deemed to have knowledge or notice simultaneously granted an equal and ratable Lien on such Purchased Asset in favor of Buyer to the occurrence of a Default or Event of Default unless the Administrative Agent extent such Lien has received written notice from a Lender Party or the Borrower specifying such Default or Event of Default and stating not already been granted to Buyer; provided, that such notice is a "Notice of Default". In the event that the Administrative Agent receives such a notice of the occurrence of a Default or equitable and ratable Lien shall not cure any resulting Event of Default. Seller shall not amend, modify, waive or terminate any provision of any Underlying Participation Interest Document in a manner affecting the Underlying Participation Interests without the Buyer’s prior written consent and shall submit any proposed UPI Modification no less than [*] prior to the proposed effective date of such UPI Modification for such review and consent. Seller shall mark its respective computer records and tapes to evidence the interests granted to Buyer hereunder. Seller shall not take any action to cause any Purchased Asset that is not evidenced by an instrument or chattel paper (as defined in the UCC) to be so evidenced. If a Purchased Asset becomes evidenced by an instrument or chattel paper, the Administrative Agent same shall give prompt notice thereof be immediately delivered to the Lender Parties. The Administrative Agent shall (subject to Section 7.02) take such action with respect to such Default or Event of Default as shall reasonably be directed by the Required Lenders; provided that, unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such actionBuyer, or refrain from taking such actionCustodian on behalf of Buyer, together with respect to such Default or Event of Default as it shall deem advisable in the best interest of the Lender Parties including, without limitation, serving notice of the occurrence of a Default or Event of Default on the Collateral Trusteeany endorsements required by Xxxxx.