The Administrative Agent. Each of the Lenders and each Letter of Credit Issuer hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. 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 herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.1), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower 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 12.1) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (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 herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more 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 apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, each Letter of Credit Issuer and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and each Letter of Credit Issuer, appoint a successor Administrative Agent which shall be a bank with an office in the United States, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 12.5 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 instruments 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. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 5 contracts

Samples: Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.)

Appears in 4 contracts

Samples: Amendment and Restatement Agreement (Sunoco Inc), Agreement (Sunoco Inc), Agreement (Sunoco Inc)

The Administrative Agent. Each of the Lenders ~~and each Letter of Credit Issuer~~ hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. 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~~ of its Subsidiaries or any of its other ~~Affiliate thereof~~ Affiliates as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct, BUT REGARDLESS OF THE PRESENCE OF ORDINARY NEGLIGENCE. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the immediate officers of the Administrative Agent responsible for this Agreement by ~~the~~ Borrower or a ~~Lender~~Lender and is called a “notice of default”, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the~~ Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more 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 apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may (and, in the event (i) neither the Administrative Agent nor any Affiliate, as a Lender, has any outstanding Loans and (ii) the Required Lenders so request, the Administrative Agent shall) resign at any time by notifying the ~~Lenders, each Letter of Credit Issuer~~ Lenders and ~~the~~ Borrower. Upon any such resignation, the Required Lenders shall have the ~~right~~right to appoint a successor, with the prior written consent of ~~the~~ Borrower (~~not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if~~ unless an Event of Default ~~has~~ shall have occurred ~~and~~ which is continuing, in which event Borrower’s consent shall not be required)~~, to appoint a successor~~. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and each Letter of Credit Issuer~~Lenders, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York City, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~the~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between ~~the~~ Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 instruments 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. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 3 contracts

Samples: Credit Agreement (Smith International Inc), Credit Agreement (Smith International Inc), Credit Agreement (Smith International Inc)

Appears in 3 contracts

Samples: Subsidiary Guaranty Agreement (Valero L P), Year Revolving Credit Agreement (NuStar Energy L.P.), Year Revolving Credit Agreement (NuStar GP Holdings, LLC)

The Administrative Agent. Each of the Lenders and ~~each~~ the Letter of Credit Issuer hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. 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 herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.1), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower 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 12.1) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this 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 herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more 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 apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~each~~ the Letter of Credit Issuer and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing~~), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and ~~each~~ the Letter of Credit Issuer, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 12.5 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 instruments 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. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the ~~Arrangers~~Joint Bookrunners, the ~~Co-Syndication Agents~~ Joint Lead Arrangers and the ~~Co-Documentation Agents~~ Syndication Agent named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 3 contracts

Samples: Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.)

The Administrative Agent. Each of the Lenders and each ~~Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. 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 herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this 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 herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more 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 apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~each Letter of Credit Issuer~~ the Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with ~~the consent of~~ approval from the Borrower (~~not to be unreasonably withheld; provided that~~ so long as no ~~such consent of the Borrower shall be required if an~~ Event of Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and ~~each Letter of Credit Issuer~~the Issuing Banks, appoint a successor Administrative ~~Agent which shall be a bank with an office in the United States, or an Affiliate of any such bank~~Agent. 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 ~~12.5~~ 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 instruments 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. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 3 contracts

Samples: Credit Agreement (Erie Indemnity Co), Credit Agreement (Erie Indemnity Co), Credit Agreement (Erie Indemnity Co)

The Administrative Agent. (a) Each of the ~~Lenders~~ Lenders, the Issuing Banks and ~~each Letter of Credit Issuer~~ the other Secured Parties hereby irrevocably appoints ~~the Administrative Agent~~ Bank of America as its agent and authorizes ~~the Administrative Agent~~ Bank of America to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~hereof and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. Each of the Lenders, the Issuing Banks and the other Secured Parties hereby irrevocably appoints Bank of America as its collateral agent and authorizes Bank of America to take such actions on its behalf and to exercise such powers as are delegated to the collateral agent by the terms hereof and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The ~~bank serving as~~ provisions of this Article are solely for 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~~ benefit of the Administrative Agent, the collateral agent, the Lenders, the Issuing Bank and the Secured Parties, and no Loan Party shall have rights as a third party beneficiary of any of such ~~bank~~ provisions. It is understood and ~~its Affiliates may accept deposits from, lend money to and generally engage~~ agreed that the use of the term “agent” herein or in any ~~kind of business with the Borrower~~ other Loan Documents (or any ~~Subsidiary or~~ other ~~Affiliate thereof as if it were not~~ similar term) with reference to the Administrative Agent ~~hereunder. The Administrative Agent shall~~ is not ~~have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject~~ intended to connote any fiduciary or other implied ~~duties~~(or express) obligations arising under agency doctrine of any applicable Law. Instead such term is used as a matter of market custom, ~~regardless of whether a Default has occurred~~ and is ~~continuing, (b) the Administrative Agent shall not have any duty~~ intended to ~~take any discretionary action~~ create or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.1), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower 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 capacityreflect only an administrative relationship between contracting parties. 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~~ alone shall be ~~necessary under~~ authorized to determine in its Permitted Discretion whether any Accounts or Inventory constitute Eligible Accounts or Eligible Inventory or whether to impose or release any Reserve (in each case, pursuant to the ~~circumstances as provided~~ terms of this Agreement), or whether any conditions to funding any Loan or to issuance of a Letter of Credit have been satisfied, which determinations and judgments, if exercised in ~~Section 12.1) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment. The Administrative Agent~~ good faith, shall ~~be deemed not to have knowledge of any Default unless and until written notice thereof is given to~~ exonerate the Administrative Agent ~~by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have~~ from liability to any ~~duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report~~ Lender 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 herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable Person for any ~~action taken~~ error in judgment or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, each Letter of Credit Issuer and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and each Letter of Credit Issuer, appoint a successor Administrative Agent which shall be a bank with an office in the United States, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 12.5 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 instruments 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. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lendermistake.

Appears in 3 contracts

Samples: Credit Agreement (Dole PLC), Credit Agreement (Dole PLC), Assignment and Assumption (Dole Food Co Inc)

Appears in 3 contracts

Samples: Assignment and Assumption (Magellan Midstream Partners Lp), Assignment and Assumption (Magellan Midstream Partners Lp), Credit Agreement (Magellan Midstream Partners Lp)

Appears in 3 contracts

Samples: Revolving Credit Agreement (Valero Energy Corp/Tx), Credit Agreement (Valero Energy Partners Lp), Credit Agreement

Appears in 3 contracts

Samples: Credit Agreement (Tupperware Brands Corp), Credit Agreement (Tupperware Brands Corp), Credit Agreement (Tupperware Brands Corp)

Appears in 2 contracts

Samples: Guaranty Agreement (Macquarie Infrastructure Corp), Guaranty Agreement (Macquarie Infrastructure Co LLC)

Appears in 2 contracts

Samples: Credit Agreement (NuStar Energy L.P.), Subsidiary Guaranty Agreement (NuStar Energy L.P.)

Appears in 2 contracts

Samples: Revolving Credit Agreement (Valero Energy Corp/Tx), Credit Agreement (Valero Energy Partners Lp)

The Administrative Agent. Each of the Lenders and ~~each Letter of Credit Issuer~~ the Issuing Lender hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ Lender 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 ~~herein~~herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed 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 ~~12.1~~10.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower 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~~ Majority Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~10.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (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 herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more 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 apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~each Letter of Credit Issuer~~ the Issuing Lender and the Borrower. Upon any such resignation, the ~~Required~~ Majority Lenders shall have the right, with the ~~consent~~ approval of ~~the Borrower (~~Borrower, which shall not to be unreasonably withheld~~; provided that no such consent of the Borrower~~ , conditioned or delayed, and shall not be required if during the existence of an Event of ~~Default has occurred and is continuing)~~Default, to appoint a successor. If no successor shall have been so appointed by the ~~Required~~ Majority Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and ~~each Letter of Credit Issuer~~the Issuing Lender, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~Houston, Texas, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 2 contracts

Samples: Credit Agreement (Cardtronics Inc), Credit Agreement (Cardtronics Inc)

The Administrative Agent. Each of the Lenders and ~~each Letter of Credit Issuer~~ the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes ~~the~~ Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to ~~the~~ Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and the Borrower shall not have rights as a third-party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties. The entity 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~~ was not the Administrative Agent, and such ~~bank~~ entity 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~~ was not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02); provided that the Administrative Agent will not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt, any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the ~~bank~~ entity serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section ~~12.1~~9.02 and Article VII) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and ~~non-appealable~~ nonappealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this ~~Agreement~~Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection ~~herewith~~herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this ~~Agreement~~ Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase 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 Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers 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 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 not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub agents. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~each Letter of Credit Issuer~~ the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the ~~consent of the Borrower~~ Borrower’s approval (which will not to be unreasonably ~~withheld; provided that no such consent of~~ withheld or delayed, and the ~~Borrower~~ Borrower’s approval shall not be required if an Event of Default has occurred ~~and~~ which is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, with the Borrower’s approval (which will not be unreasonably withheld or delayed, and the Borrower’s approval shall not be required if an Event of Default has occurred which is continuing), on behalf of the Lenders and ~~each Letter of Credit Issuer~~the Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank and such bank, or its Affiliate, as applicable, shall have capital and surplus equal to or greater than $500,000,000. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, 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~~ an Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. ~~Each Lender acknowledges~~ In addition to the foregoing, subject to the appointment and ~~agrees that~~ acceptance of one or more successor Issuing Banks as provided in this paragraph, the ~~extensions~~ Issuing Bank may resign at any time by notifying the Administrative Agent, the Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the Borrower’s approval (which will not be unreasonably withheld or delayed, and the Borrower’s approval shall not be required if an Event of ~~credit made~~ Default has occurred which is continuing), to appoint one or more successors. If no successors shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Issuing Bank gives notice of its resignation, then the retiring Issuing Bank may, with the Borrower’s approval (which will not be unreasonably withheld or delayed, and the Borrower’s approval shall not be required if an Event of Default has occurred which is continuing), on behalf of the Lenders, appoint one or more successor Issuing Banks which each 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 an Issuing Bank hereunder ~~are commercial loans~~ by a successor, (i) such successor shall succeed to and ~~letters~~ become vested with all of ~~credit~~ the rights, powers, privileges and ~~not instruments~~ duties of the resigning Issuing Bank, (ii) the resigning Issuing Bank shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents and (iii) such successor Issuing Bank(s) shall issue Letters of Credit in ~~a business enterprise~~ substitution for the Letters of Credit, if any, outstanding at the time of such succession or ~~securities~~make other arrangements satisfactory to the resigning Issuing Bank to effectively assume the obligations of the resigning Issuing Bank with respect to such Letters of Credit. The fees payable by the Borrower to each successor Issuing Bank shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. Each Lender ~~further represents~~ and Issuing Bank acknowledges 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 or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to~~ None of the ~~contrary the~~ Joint Lead Arrangers, Joint Bookrunners, the ~~Co-~~Documentation Agents or the Syndication Agents shall have any right, power, obligation, liability, responsibility or duty under this Agreement or any of the other Loan Documents other than those applicable to all Lenders as such. Without limiting the foregoing, none of the Joint Lead Arrangers, Joint Bookrunners, the Documentation Agents or the Syndication Agents shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to each of the Joint Lead Arrangers, Joint Bookrunners, the Documentation Agents and the ~~Co-Documentation~~ Syndication Agents ~~named~~ as it makes with respect to the Administrative Agent in the immediately preceding paragraph of this Article VIII. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to Borrower, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the ~~cover page of this Agreement~~ Borrower) shall be entitled and empowered (but not ~~have any duties~~ obligated) by intervention in such proceeding or ~~liabilities under this Agreement, except in its capacity, if any, as a Lender.~~otherwise:

Appears in 2 contracts

Samples: Lender Agreement (Williams Randa Duncan), Credit Agreement (Williams Randa Duncan)

Appears in 2 contracts

Samples: 364 Day Revolving Credit Agreement (NuStar GP Holdings, LLC), Revolving Credit Agreement (NuStar GP Holdings, LLC)

Appears in 2 contracts

Samples: Revolving Credit Agreement (Xenia Hotels & Resorts, Inc.), Revolving Credit Agreement (Xenia Hotels & Resorts, Inc.)

Appears in 2 contracts

Samples: Credit Agreement (Lydall Inc /De/), Credit Agreement (Lydall Inc /De/)

Appears in 2 contracts

Samples: Assignment and Assumption (Dividend Capital Trust Inc), Assignment and Assumption (DCT Industrial Trust Inc.)

Appears in 2 contracts

Samples: Credit Agreement (Abercrombie & Fitch Co /De/), Credit Agreement (Abercrombie & Fitch Co /De/)

The Administrative Agent. Each of the Lenders ~~and each Letter of Credit Issuer~~ hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. 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 ~~herein~~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 ~~hereby~~ 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 ~~12.1~~10.02), and (c) except as expressly set forth ~~herein~~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~~ the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~10.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any 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 herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 V or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more 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 apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the ~~Lenders, each Letter of Credit Issuer~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and each Letter of Credit Issuer~~Lenders, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein~~ Subject to the ~~contrary the Arrangers~~foregoing provisions of this Article IX, the ~~Co-Syndication Agents~~ Administrative Agent shall, on behalf of the Lenders, (i) execute each Loan Document on behalf of the Lenders, (ii) hold and apply the Collateral, and the ~~Co-Documentation Agents named~~ proceeds thereof, at any time received by it in accordance with the provisions of the Loan Documents, (iii) exercise any and all rights, powers and remedies of the Lenders under the Loan Documents, including the giving of any consent or waiver or the entering into of any amendment, subject to the provisions of Section 10.02, (iv) execute, deliver and file financing statements, assignments and other such agreements, and possess instruments on behalf of the ~~cover page~~ Lenders and (v) in the event of ~~this Agreement shall not have any duties or liabilities~~ acceleration of the obligations of the Borrower hereunder, exercise the rights of the Lenders under ~~this Agreement, except in its capacity, if any, as a Lender~~the Loan Documents upon and at the direction of the Required Lenders.

Appears in 2 contracts

Samples: Credit Agreement (Jupitermedia Corp), Credit Agreement (Jupitermedia Corp)

Appears in 2 contracts

Samples: Credit Agreement (National Fuel Gas Co), Credit Agreement (National Fuel Gas Co)

Appears in 2 contracts

Samples: Credit Agreement (Fortune Brands Home & Security, Inc.), Credit Agreement (Fortune Brands Home & Security LLC)

The Administrative Agent. Each of the Lenders and ~~each Letter of Credit Issuer~~ the Issuing Bank hereby irrevocably appoints ~~the~~ each Administrative Agent as its agent and authorizes ~~the~~ each Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to ~~the~~ such Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. ~~The~~ Each bank serving as ~~the~~ an Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not ~~the~~ an 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~~ Parent or any Subsidiary or other Affiliate thereof as if it were not ~~the~~ an Administrative Agent hereunder. The Administrative ~~Agent~~ Agents shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative ~~Agent~~ Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative ~~Agent~~ Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the applicable 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 ~~12.1~~9.02), and (c) except as expressly set forth herein, the Administrative ~~Agent~~ Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any 77 information relating to the ~~Borrower~~ Parent or any of its Subsidiaries that is communicated to or obtained by ~~the~~ either bank serving as Administrative Agent or any of ~~its~~ their respective Affiliates in any capacity. ~~The~~ Neither 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 ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. ~~The~~ Each Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to ~~the~~ such Administrative Agent by ~~the~~ a Borrower or a Lender, and ~~the~~ neither 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, (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 herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to ~~the~~ such Administrative Agent. ~~The~~ Each Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. ~~The~~ Each Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. ~~The~~ Each Administrative Agent may consult with legal counsel (who may be counsel for ~~the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The~~ Each Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by ~~the~~ such Administrative Agent. ~~The~~ Each 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~~ each Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, ~~the~~ any Administrative Agent may resign at any time by notifying the Lenders, ~~each Letter of Credit Issuer~~ the Issuing Bank and the ~~Borrower~~Borrowers. Upon any such resignation, the Required Lenders shall have the right, in consultation with ~~the consent of the Borrower (not to be unreasonably withheld;~~ and, provided ~~that~~ no ~~such consent of the Borrower shall be required if an~~ Event of Default has occurred and is continuing, subject to the consent of (such consent not to be unreasonably withheld), the Parent, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and ~~each Letter of Credit Issuer~~the Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office (a) in the ~~United States~~case of a successor Domestic Administrative Agent, in New York, New York and (b) in the case of a successor French Administrative Agent, in London, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Borrowers and such successor. After ~~the~~ any Administrative Agent’s resignation hereunder, the provisions of this Article VIII and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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~~ any 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~~ any 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 related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to the contrary the Arrangers~~Each Administrative Agent, the ~~Co-Syndication Agents~~ Lenders and the ~~Co-Documentation Agents named~~ Issuing Bank appoint the French Administrative Agent to act as security trustee under and in connection with the Foreign Security Documents on the ~~cover page of this Agreement shall not have any duties or liabilities under this~~ terms and conditions set out in Schedule 8. Each Lender hereby authorizes the Administrative Agents to execute the Intercreditor Agreement~~, except in its capacity, if any, as a Lender~~.

Appears in 2 contracts

Samples: Credit Agreement (Mirion Technologies, Inc.), Credit Agreement (Mirion Technologies, Inc.)

Appears in 2 contracts

Samples: Credit Agreement (Stepan Co), Credit Agreement (Johnson Outdoors Inc)

The Administrative Agent. Each of the Lenders and each ~~Letter of Credit~~ LC Issuer hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. 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~~ any 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 herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Potential Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby 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 ~~12.1~~8.2), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the ~~Borrower~~ Parent 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 ~~12.1~~8.2) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default or Potential Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (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 herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more 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 apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Each of the European Administrative Agent and the Canadian Administrative Agent shall be deemed to be a sub-agent of the Administrative Agent for all purposes of this Agreement and entitled to the benefits of this Article X. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~each Letter of Credit Issuer~~ the LC Issuers and the ~~Borrower~~Parent. Upon any such resignation, the Required Lenders shall have the ~~right~~right to appoint a successor which, ~~with~~ if no Default under Sections 7.2, 7.6 or 7.7 exists, is approved by the ~~consent of the Borrower~~ Parent (which approval will not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing~~)~~, to appoint a successor~~. If no successor shall have been so appointed by the Required Lenders (and if applicable, approved by the Parent) and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and ~~each Letter of Credit Issuer~~the LC Issuers, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Parent to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Parent and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.6 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to~~ Neither any of the ~~contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of~~ Lenders identified in this Agreement as a "co-agent" nor any Syndication Agent shall ~~not~~ have any ~~duties~~ right, power, obligation, liability, responsibility or ~~liabilities~~ duty under this ~~Agreement~~Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, ~~except in its capacity, if any, as~~ none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender.

Appears in 2 contracts

Samples: Credit Agreement (Cameron International Corp), Credit Agreement (Cameron International Corp)

The Administrative Agent. Each of the Lenders ~~and each Letter of Credit Issuer~~ hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. 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~~ Parent 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 ~~herein~~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 ~~hereby~~ 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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~~ Parent or any of ~~its~~ the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Parent, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the Borrower~~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. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs~~ this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the ~~Lenders, each Letter of Credit Issuer~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and each Letter of Credit Issuer~~Lenders, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, ~~or an Affiliate~~ New York, and having a combined capital and surplus of ~~any such bank~~at least $500,000,000. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, 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 ~~12.5~~ 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 instruments 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. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, the Guarantee Agreement, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to~~ The parties hereto acknowledge that the ~~contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall~~ Arrangers (in their capacity as such) do not have any duties or ~~liabilities~~ responsibilities under ~~this Agreement, except in its capacity, if any, as a Lender~~any of the Loan Documents and will not be subject to liability thereunder to any of the Loan Parties for any reason.

Appears in 2 contracts

Samples: Credit Agreement (American Axle & Manufacturing Holdings Inc), Credit Agreement (American Axle & Manufacturing Holdings Inc)

Appears in 2 contracts

Samples: Credit Agreement (Fortune Brands Home & Security, Inc.), Credit Agreement (Fortune Brands Home & Security, Inc.)

The Administrative Agent. Each of the Lenders ~~and each Letter of Credit Issuer~~ hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. 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 ~~herein~~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 ~~hereby~~ 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 ~~12.1~~9.2), and (c) except as expressly set forth ~~herein~~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 ~~12.1~~9.2) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall not be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more 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~~ 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 to the Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the ~~Lenders, each Letter of Credit Issuer~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and each Letter of Credit Issuer~~Lenders, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.3 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 instruments 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~~ Agent, any other Lender or any of their respective affiliates and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent or~~ Agent, any other Lender or any of their respective affiliates and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-~~The Documentation ~~Agents named on the cover page of this Agreement~~ Agent shall not have any duties or ~~liabilities under this Agreement, except~~ responsibilities hereunder in its ~~capacity, if any,~~ capacity as ~~a Lender~~such.

Appears in 2 contracts

Samples: Reimbursement Agreement (SPX Corp), Collateral Agreement (SPX Corp)

Appears in 1 contract

Samples: Credit Agreement (Benchmark Electronics Inc)

The Administrative Agent. Each of the Lenders and ~~each Letter of Credit Issuer~~ the Issuers hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. 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~~ Affili-ates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Unmatured Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby 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 12.1~~required hereunder), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the ~~Borrower~~ Company 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 ~~12.1~~8.2.1) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default or Unmatured Default unless and until written notice thereof is given to the Administrative Agent by ~~the~~ a Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this 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 herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the~~ a Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Without limiting the foregoing, X.X. Xxxxxx Europe Limited, an Affiliate of the Administrative Agent, or any successor-in-interest-thereto, may perform the Administrative Agent's functions with respect to Loans denominated in any Available Foreign Currency, including Swing Loans. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~each Letter of Credit Issuer~~ the Issuers and the ~~Borrower~~Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and ~~each Letter of Credit Issuer~~the Issuers, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Company and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 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 Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and ~~information~~ informa-tion as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to~~ Each Lender acknowledges and agrees that the ~~contrary~~ extensions of credit made hereunder are commercial loans and letters of credit and not investments in a business enterprise or securities. Neither any of the ~~Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of~~ Lenders identified in this Agreement as a Syndication Agent, Documentation Agent, Managing Agent, Joint Lead Arranger, Bookrunner nor co-agent shall ~~not~~ have any ~~duties~~ right, power, obligation, liability, responsibility or ~~liabilities~~ duty under this ~~Agreement, except in its capacity, if any,~~ Agreement other than those applicable to all Lenders as a Lender. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender.

Appears in 1 contract

Samples: Credit Agreement (Diebold Inc)

Appears in 1 contract

Samples: Credit Agreement (Parexel International Corp)

Appears in 1 contract

Samples: Year Revolving Credit Agreement (NuStar Energy L.P.)

Appears in 1 contract

Samples: Credit Agreement (White Electronic Designs Corp)

The Administrative Agent. In order to expedite the transactions contemplated by this Agreement, MSSF is hereby appointed to act as Administrative Agent on behalf of the Lenders. Each of the Lenders ~~and each Letter of Credit Issuer~~ hereby irrevocably ~~appoints the Administrative Agent as its agent and~~ authorizes the Administrative Agent to take such actions on ~~its~~ behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank serving as~~ Administrative Agent is hereby expressly authorized by the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders all payments of principal of and interest on the Loans and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default of which the Administrative Agent ~~hereunder shall have~~ 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 ~~same rights and powers in its capacity~~ Company pursuant to this Agreement as ~~a Lender as any other Lender and may exercise the same as though it were not~~ received by the Administrative Agent. Notwithstanding any provision to the contrary elsewhere in this Agreement, ~~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~~ responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent. ~~Without limiting the generality of~~ Notwithstanding the foregoing, ~~(a)~~ none of the Syndication Agent, Documentation Agents, Joint Lead Arrangers or Bookrunners listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity as a Lender. Neither the Administrative Agent nor any of its respective affiliates nor any of its respective affiliates’ directors, officers, employees, agents, advisors or attorneys-in-fact shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby 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 12.1), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for ~~the failure~~ any action taken or omitted to ~~disclose, any information relating to the Borrower or~~ be taken by any of them except for its ~~Subsidiaries that is communicated~~ or his or her own gross negligence or willful misconduct (as determined by a final and non-appealable decision of a court of competent jurisdiction), or be responsible for any statement, warranty or representation herein or in any document delivered in connection herewith or the contents of any document delivered in connection herewith, or be required to ascertain or ~~obtained~~ to make any inquiry concerning the performance or observance by the ~~bank serving as Administrative Agent or~~ Company of any of ~~its Affiliates~~ the terms, conditions, covenants or agreements contained in ~~any capacity~~this Agreement. The Administrative Agent shall not be ~~liable~~ responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements or for the failure of the Company to perform its obligations under this Agreement. The Administrative Agent may deem and treat the Lender which makes any ~~action taken~~ Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Administrative Agent shall in all cases be fully protected in acting, or ~~not taken~~ refraining from acting, in accordance with written instructions signed by ~~it with the consent or at the request of~~ the Required Lenders (and, except as otherwise specifically provided herein, such instructions and any action or ~~such other number or percentage of the Lenders as~~ inaction pursuant thereto shall be ~~necessary under~~ binding on all the ~~circumstances as provided in Section 12.1) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~Lenders. The Administrative Agent shall be ~~deemed not~~ fully justified in failing or refusing to ~~have knowledge of~~ take any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (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 herein, (iv) the validity, enforceability, effectiveness or genuineness of action under this Agreement or any other ~~agreement~~Loan Document unless it shall first receive such advice or concurrence of the Required Lenders (or, ~~instrument~~ if so specified by this Agreement, all Lenders) as it deems appropriate or ~~document,~~ it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense that may be incurred by them by reason of taking or ~~(v) the satisfaction of~~ continuing to take any ~~condition set forth in Article 6 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent~~such action. The Administrative Agent ~~shall~~ shall, in the absence of knowledge to the contrary, be entitled to rely ~~upon, and shall not incur~~ on any ~~liability for relying upon, any notice, request, certificate, consent, statement, instrument,~~ instrument or document ~~or other writing~~ believed by it in good faith to be genuine and correct and to have been signed or sent by the proper ~~Person~~Person or Persons. ~~The~~ Neither the Administrative Agent ~~also may rely upon~~ nor any ~~statement made~~ of its respective directors, officers, employees or agents shall have any responsibility to ~~it orally~~ the Company on account of the failure of or delay in performance or breach by ~~telephone and believed~~ any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by ~~it to be made by the proper Person, and shall not incur~~ any ~~liability for relying thereon~~other Lender of any of its respective obligations hereunder or in connection herewith. The Administrative Agent may ~~consult with~~ execute any and all duties hereunder by or through its Affiliates, agents, attorneys-in-fact or employees and shall be entitled to rely upon the advice of legal counsel selected by them (~~who may be~~ including counsel ~~for~~ to the ~~Borrower~~Company), independent accountants and other experts selected by ~~it,~~ them 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 them in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. The Lenders hereby acknowledge that the Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. The Administrative Agent ~~may perform~~ shall not be deemed to have knowledge or notice of the occurrence of any ~~and all its duties and exercise its rights and powers by~~ Default or ~~through any one or more sub-agents appointed by~~ Event of Default unless the Administrative ~~Agent~~Agent has received notice from a Lender or the Company referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default”. In the event that the Administrative Agent receive such a notice, the Administrative Agent shall give notice thereof to the Lenders. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders (or, if so specified by this Agreement, all Lenders); provided that unless and ~~any~~ until the Administrative Agent shall have received such ~~sub-agent~~ directions, the Administrative Agent may ~~perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions~~ (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 interests of the ~~preceding paragraphs shall apply to any such sub-agent and to~~ Lenders. Subject, in the ~~Related Parties~~ case of a resignation of the Administrative ~~Agent and 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 Administrative Agent. Subject~~ to the appointment and acceptance of a successor Administrative Agent as provided ~~in this paragraph~~below, the Administrative Agent may resign at any time by notifying the ~~Lenders, each Letter of Credit Issuer~~ Lenders and the ~~Borrower~~Company. Upon any such ~~resignation~~resignation of the Administrative Agent, the Required Lenders shall have the ~~right, with the consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing),~~ right to appoint a ~~successor~~successor Administrative Agent acceptable to the Company. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its ~~resignation~~resignation (or such earlier day as shall be agreed by the Required Lenders and the Company (the “Resignation Effective Date”), then the retiring Administrative Agent may, on behalf of the ~~Lenders and each Letter of Credit Issuer~~Lenders, appoint a successor Administrative Agent (including, for the avoidance of doubt, a successor Administrative Agent) which shall be a bank with an office in ~~the United States~~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~~ any appointment as Administrative Agent hereunder by a ~~successor~~successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative ~~Agent,~~ Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrower to~~ Whether or not a successor ~~Administrative Agent~~ has been appointed, such resignation shall be become effective in accordance with such notice on the ~~same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor~~Resignation Effective Date. After the Administrative Agent’s resignation hereunder, the provisions of this Article and ~~Section 12.5~~ SECTION 8.5. shall continue in effect for ~~the~~ its 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. With respect to the Loans made by them hereunder, the Administrative Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not the Administrative Agent, and the Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent. Each Lender agrees (i) to reimburse the Administrative Agent, on demand, in the amount of its Applicable Percentage of any expenses incurred for the benefit of the Lenders by the Administrative Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Company and (ii) to indemnify and hold harmless the Administrative Agent and any of its respective directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against the Administrative Agent in its capacity as such in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Company; provided that no Lender shall be liable to the Administrative Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Administrative Agent or any of its directors, officers, employees or agents as determined by a final and non-appealable decision of a court of competent jurisdiction. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 or any of their respective affiliates or their or their respective affiliates’ directors, officers, employees, advisors or attorneys-in-fact and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their respective affiliates or their or their respective affiliates’ directors, officers, employees, advisors or attorneys-in-fact and based on such documents and information as it shall 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 related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein~~ Except for notices, reports and other documents expressly required to be furnished to the ~~contrary~~ Lenders by the ~~Arrangers~~Administrative Agent hereunder, the ~~Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement~~ Administrative Agent shall not have any ~~duties~~ duty or ~~liabilities under this Agreement~~responsibility to provide any Lender with any credit or other information concerning the business, ~~except~~ operations, property, condition (financial or otherwise), prospects or creditworthiness of the Company or any affiliate of the Company that may come into the possession of the Administrative Agent or any of its officers, directors, employees, agents, advisors, attorneys in ~~its capacity, if any~~fact or affiliates. Each Lender (x) represents and warrants, as of the date such Person became a ~~Lender.~~Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of the Administrative Agent and its Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Company, that at least one of the following is and will be true:

Appears in 1 contract

Samples: Term Loan Credit Agreement (Bristol Myers Squibb Co)

Appears in 1 contract

Samples: Credit Agreement (Fisher Scientific International Inc)

Appears in 1 contract

Samples: Credit Agreement (National Fuel Gas Co)

Appears in 1 contract

Samples: Credit Agreement (Service Corporation International)

Appears in 1 contract

Samples: Credit Agreement (Duncan Dan L)

The Administrative Agent. Each of the ~~Lenders~~ Lenders, Issuing Banks and ~~each Letter of Credit Issuer~~ the Swingline Lender hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. 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~~ Company 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 herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the ~~Borrower~~ Company 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower~~ Company or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (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 herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~each Letter of Credit Issuer~~ the Issuing Banks and the ~~Borrower~~Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company and subject to the consent of the ~~Borrower~~ Company (~~not to be unreasonably withheld; provided that~~ so long as no ~~such consent of the Borrower shall be required if an~~ Event of Default under Sections 7.01(a), (b), (h) or (i) has occurred and is ~~continuing~~continuing at such time), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and ~~each Letter of Credit Issuer~~the Issuing Banks, appoint a successor Administrative Agent which shall be ~~a bank with~~ an ~~office in the United States, or an Affiliate of any such bank~~Eligible Institution. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Company and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not ~~instruments~~ 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~~Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender ~~also acknowledges that it will~~shall, independently and without reliance upon the 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 Company 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~~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. ~~Notwithstanding anything~~ Anything herein to the contrary notwithstanding, none of the ~~Arrangers~~Lead Arranger, ~~the~~ Bookrunner, Co-Syndication Agents ~~and the~~ or Co-Documentation Agents ~~named~~ listed on the cover page of hereof shall have any powers, duties or responsibilities under this Agreement ~~shall not have~~ or any ~~duties or liabilities under this Agreement~~of the other Loan Documents, except in its capacity, ~~if any~~as applicable, as the Administrative Agent or a ~~Lender~~Lender hereunder.

Appears in 1 contract

Samples: Credit Agreement (Westlake Chemical Corp)

The Administrative Agent. Each of the Lenders and each ~~Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. 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 ~~herein~~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 ~~hereby~~ 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 ~~12.1),~~ 9.02) and (c) except as expressly set forth ~~herein~~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 ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall not be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or ~~document,~~ document or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more 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 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, the Administrative Agent may resign at any time by notifying the Lenders, ~~each Letter of Credit Issuer~~ the Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, in consultation with the Borrower, on behalf of the Lenders and ~~each Letter of Credit Issuer~~the Issuing Banks, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 instruments 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. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.ARTICLE IX

Appears in 1 contract

Samples: Credit Agreement (Dress Barn Inc)

Appears in 1 contract

Samples: Credit Agreement (Alliant Techsystems Inc)

Appears in 1 contract

Samples: Credit Agreement (CHG Healthcare Services, Inc.)

The Administrative Agent. Each of the Lenders ~~and each Letter of Credit Issuer~~ hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. 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 ~~herein~~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 ~~hereby~~ 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 ~~12.1~~9.2), and (c) except as expressly set forth ~~herein~~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 ~~12.1~~9.2) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall not be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more 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 apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, each Letter of Credit Issuer and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and each Letter of Credit Issuer, appoint a successor Administrative Agent which shall be a bank with an office in the United States, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 12.5 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 instruments 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. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.,

Appears in 1 contract

Samples: SPX Corp

The Administrative Agent. Each of the Lenders and ~~each Letter of Credit Issuer~~ the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes ~~the~~ Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to ~~the~~ Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and the Borrower shall not have rights as a third-party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties. The entity 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~~ was not the Administrative Agent, and such ~~bank~~ entity 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~~ was not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02); provided that the Administrative Agent will not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt, any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the ~~bank~~ entity serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section ~~12.1~~9.02 and Article VII) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and ~~non-appealable~~ nonappealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this ~~Agreement~~Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection ~~herewith~~herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this ~~Agreement~~ Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase 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 Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers 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 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 not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub agents. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~each Letter of Credit Issuer~~ the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the ~~consent of the Borrower~~ Borrower’s approval (which will not to be unreasonably ~~withheld; provided that no such consent of~~ withheld or delayed, and the ~~Borrower~~ Borrower’s approval shall not be required if an Event of Default has occurred ~~and~~ which is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, with the Borrower’s approval (which will not be unreasonably withheld or delayed, and the Borrower’s approval shall not be required if an Event of Default has occurred which is continuing), on behalf of the Lenders and ~~each Letter of Credit Issuer~~the Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank and such bank, or its Affiliate, as applicable, shall have capital and surplus equal to or greater than $500,000,000. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, 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~~ an Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. ~~Each Lender acknowledges~~ In addition to the foregoing, subject to the appointment and ~~agrees that~~ acceptance of one or more successor Issuing Banks as provided in this paragraph, the ~~extensions~~ Issuing Bank may resign at any time by notifying the Administrative Agent, the Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the Borrower’s approval (which will not be unreasonably withheld or delayed, and the Borrower’s approval shall not be required if an Event of ~~credit made~~ Default has occurred which is continuing), to appoint one or more successors. If no successors shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Issuing Bank gives notice of its resignation, then the retiring Issuing Bank may, with the Borrower’s approval (which will not be unreasonably withheld or delayed, and the Borrower’s approval shall not be required if an Event of Default has occurred which is continuing), on behalf of the Lenders, appoint one or more successor Issuing Banks which each 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 an Issuing Bank hereunder ~~are commercial loans~~ by a successor, (i) such successor shall succeed to and ~~letters~~ become vested with all of ~~credit~~ the rights, powers, privileges and ~~not instruments~~ duties of the resigning Issuing Bank, (ii) the resigning Issuing Bank shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents and (iii) such successor Issuing Bank(s) shall issue Letters of Credit in ~~a business enterprise~~ substitution for the Letters of Credit, if any, outstanding at the time of such succession or ~~securities~~make other arrangements satisfactory to the resigning Issuing Bank to effectively assume the obligations of the resigning Issuing Bank with respect to such Letters of Credit. The fees payable by the Borrower to each successor Issuing Bank shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. Each Lender ~~further represents~~ and Issuing Bank acknowledges 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 or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein~~ Neither of the Arranger or Bookrunner nor the Syndication Agents shall have any right, power, obligation, liability, responsibility or duty under this Agreement or any of the other Loan Documents other than those applicable to all Lenders as such. Without limiting the foregoing, neither of the Arranger or Bookrunner nor the Syndication Agents shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to each of the Arranger, Bookrunner and the Syndication Agents as it makes with respect to the ~~contrary~~ Administrative Agent in the ~~Arrangers~~immediately preceding paragraph of this Article VIII. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to Borrower, the ~~Co-Syndication Agents~~ Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the ~~Co-Documentation Agents named~~ Administrative Agent shall have made any demand on the ~~cover page of this Agreement~~ Borrower) shall be entitled and empowered (but not ~~have any duties~~ obligated) by intervention in such proceeding or ~~liabilities under this Agreement, except in its capacity, if any, as a Lender.~~otherwise:

Appears in 1 contract

Samples: Credit Agreement (Williams Randa Duncan)

The Administrative Agent. Each of the Lenders ~~and each Letter of Credit Issuer~~ hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. 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 of the Borrower or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall ~~not~~ have ~~any~~ no duties or obligations except those expressly set forth ~~herein~~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~~ no duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~8.08), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall ~~not~~ have ~~any~~ no duty to disclose, ~~and~~ nor shall ~~not~~ it be liable for the failure to disclose, any information relating to the Borrower or any of ~~its~~ the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall be 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 ~~12.1~~8.08) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any ~~Default~~ Default, except with respect to defaults in the payment of principal, interest and fees required to be paid to the Administrative Agent for the account of the Lenders, unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper ~~Person~~person. The Administrative Agent may also ~~may~~ rely upon any statement made to it orally or by telephone and believed by it to be have been made by the proper ~~Person~~person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by ~~the Administrative Agent~~it. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided ~~in this paragraph~~below, the Administrative Agent may resign at any time by notifying the ~~Lenders, each Letter of Credit Issuer~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and each Letter of Credit Issuer~~Lenders, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After ~~the~~ an Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 8.05 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 instruments 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. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement~~Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Samples: Loan Agreement (TransDigm Group INC)

Appears in 1 contract

Samples: Credit Agreement (Jackson Hewitt Tax Service Inc)

Appears in 1 contract

Samples: Day Revolving Credit Agreement (NuStar GP Holdings, LLC)

Appears in 1 contract

Samples: Credit Agreement (Newell Rubbermaid Inc)

The Administrative Agent. Each of the Lenders and ~~each Letter of Credit Issuer~~ the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. 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~~ 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 herein. Without limiting the generality of the foregoing, ([a) ] the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, ([b) ] the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and ([c) ] except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower 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 ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into ([i) ] any statement, warranty or representation made in or in connection with this 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 herein, ([iv) ] the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or ([v) ] the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more 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 apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~each Letter of Credit Issuer~~ the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and ~~each Letter of Credit Issuer~~the Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 instruments 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. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and ~~information~~ information as it shall 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. Lenders hereby irrevocably authorize Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by Administrative Agent upon any Collateral [i] upon termination of the Commitments and upon final and indefeasible payment in full in cash and satisfaction of all Obligations and termination of this Agreement; [ii] constituting property being sold or disposed of in accordance with the Loan Documents; or [iii] constituting property leased to an Obligor under a lease that has expired or been terminated in a transaction permitted under this Agreement or is about to expire and which has not been, and is not intended by the applicable Obligor to be, renewed or extended. Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Obligors in respect of) all interests retained by the Obligors, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral and the Administrative Agent shall not be required to execute any such release on terms which, in the Administrative Agent’s reasonable opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty. Administrative Agent shall have no obligation whatsoever to any Lender or any other Person to assure that the property covered by this Agreement or the other Loan Documents exists or is owned by an Obligor or is cared for, protected or insured or has been encumbered or that the Liens granted to Administrative Agent on behalf of Lenders herein or pursuant hereto have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to Administrative Agent in this Agreement or in any of the Loan Documents, it being understood and agreed that in respect of the property covered by this Agreement or the Loan Documents or any act, omission or event related thereto, Administrative Agent may act in any manner it may deem appropriate, in its discretion, given Administrative Agent’s own interest in property covered by this Agreement or the Loan Documents as one of the Lenders and that Administrative Agent shall have no duty or liability in that regard whatsoever to any of the other Lenders. Each Lender hereby appoints each other Lender as agent for the purpose of perfecting Lenders’ security interest in Collateral which, in accordance with Article 9 of the Uniform Commercial Code in any applicable jurisdiction, can be perfected only by possession. Should any Lender (other than Administrative Agent) obtain possession of any such Collateral following an Event of Default, such Lender shall notify Administrative Agent thereof, and, promptly upon Administrative Agent’s request therefor, shall deliver such Collateral to Administrative Agent or in accordance with Administrative Agent’s instructions. The Administrative Agent may file such proofs of claim or documents as may be necessary or advisable in order to have the claims of the Administrative Agent and the Lenders (including any claim for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and the Lenders, their respective agents, financial advisors and counsel), allowed in any judicial proceedings relative to any Obligor, or any of their respective creditors or property, and shall be entitled and empowered to collect, receive and distribute any monies, securities or other property payable or deliverable on any such claims. Any custodian in any judicial proceedings relative to any Obligor is hereby authorized by each Lender to make payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent, its agents, financial advisors and counsel, and any other amounts due the Administrative Agent. Nothing contained in this Agreement or the other Loan Documents shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Loans, or the rights of any holder thereof, or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding, except as specifically permitted herein. Each Lender agrees that, except as to Collateral in which a security interest may be perfected by possession, it will not have any right individually to enforce or seek to enforce this Agreement or any other Loan Document or to realize upon any Collateral for the benefit of the Lenders, it being understood and agreed that such rights and remedies may be exercised only by Administrative Agent. Any proceeds of Collateral received by the Administrative Agent [i] not constituting a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrower) or [ii] after an Event of Default has occurred and is continuing and the Administrative Agent so elects or the Required Lenders otherwise so direct, shall be applied ratably first, to pay any fees, indemnities, or expense reimbursements including amounts then due to the Administrative Agent and the Issuing Bank from the Borrower; second, to pay any fees or expense reimbursements then due to the Lenders from the Borrower; third, to pay interest then due and payable on the Loans ratably; fourth, to prepay principal on the Loans and unreimbursed LC Disbursements and any amounts owing with respect to Cash Management Products and Swap Obligations ratably; fifth, to pay an amount to the Administrative Agent equal to one hundred five percent (105%) of the aggregate LC Exposure, to be held as cash Collateral for such Obligations, and sixth, to the payment of any other Obligations due to the Administrative Agent or any Lender by the Borrower. Notwithstanding anything ~~herein~~ to the contrary ~~the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under~~ contained in this Agreement, unless so directed by the Borrower, or unless a Default is in existence, none of the Administrative Agent or any Lender shall apply any payment which it receives to any Eurodollar Loan of a Class, except [a] on the expiration date of the Interest Period applicable to any such Eurodollar Loan or [b] in ~~its capacity~~the event, ~~if any~~and only to the extent, ~~as a Lender~~that there are no outstanding ABR Loans of the same Class and, in any event, the Borrower shall pay the break funding payment required in accordance with Section 2.16.

Appears in 1 contract

Samples: Assignment and Assumption (Almost Family Inc)

The Administrative Agent. Each of the Lenders and each ~~Letter~~ of ~~Credit Issuer~~ the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. 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~~ any 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 herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~the Borrower~~ LMI 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~the Borrower~~ LMI or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this ~~Agreement~~Agreement or any 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 herein, (iv) the validity, enforceability, effectiveness or genuineness of this ~~Agreement~~ Agreement, any other 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 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more 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 apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~each Letter of Credit Issuer~~ the Issuing Banks and ~~the Borrower~~LMI. Upon any such resignation, the Required Lenders shall have the right, with the consent of ~~the Borrower~~ LMI (such consent not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing~~, delayed or conditioned), to appoint a successor. If no successor shall have been so appointed by the Required ~~Lenders~~ Lenders, consented to by LMI and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and ~~each Letter of Credit Issuer~~the Issuing Banks, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~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~~ LMI to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between ~~the Borrower~~ LMI and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not ~~instruments~~ 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~~ Agent, any arranger of the credit facilities hereunder or any amendment thereto or any other Lender and 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~~Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender ~~also acknowledges that it will~~shall, independently and without reliance upon the Administrative ~~Agent~~ Agent, any arranger of the credit facilities hereunder or any amendment thereto or any other Lender and their respective Related Parties 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 Borrowers and their 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~~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. ~~Notwithstanding anything~~ Anything herein to the contrary ~~the Arrangers~~notwithstanding, ~~the Co-~~no Arranger, Syndication ~~Agents and the Co-~~Agent or Documentation ~~Agents named~~ Agent listed on the cover page ~~of this Agreement~~ hereof shall ~~not~~ have any powers, duties or ~~liabilities~~ responsibilities under this ~~Agreement~~Credit Agreement or any of the other Loan Documents, except in its capacity, ~~if any~~as applicable, as the Administrative Agent, a ~~Lender~~Lender or an Issuing Bank hereunder. In its capacity, the Administrative Agent is a “representative” of the Secured Parties within the meaning of the term “secured party” as defined in the UCC. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Secured Party (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Secured Parties upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Secured Parties any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Secured Parties. The Lenders hereby irrevocably authorize the Administrative Agent, at its option and in its sole discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral in accordance with Section 9.02(d). Upon any sale or transfer of assets constituting Collateral that is permitted pursuant to the terms of any Loan Document, or consented to in writing by the Required Lenders or all of the Lenders, as applicable, and upon at least five (5) Business Days’ (or such shorter period as the Administrative Agent shall agree) prior written request by LMI to the Administrative Agent, the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for the benefit of the Secured Parties herein or pursuant hereto upon the Collateral that was sold or transferred; provided, that (a) the Administrative Agent shall not be required to execute any such document on terms which, in the Administrative Agent’s opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (b) such release shall not in any manner discharge, affect or impair the Secured Obligations or any Liens upon (or obligations of any Borrower or any Subsidiary in respect of) all interests retained by any Borrower or any Subsidiary, including the proceeds of the sale, all of which shall continue to constitute part of the Collateral. The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the Obligations (including by accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar laws in any other jurisdictions to which a Credit Party is subject, or (b) at any other sale, foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties entitled to be, and shall be, credit bid by the Administrative Agent at the direction of the Required Lenders on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that shall vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) for the asset or assets so purchased (or for the equity interests or debt instruments of the acquisition vehicle or vehicles that are issued in connection with such purchase). In connection with any such bid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or vehicles (ii) each of the Secured Parties’ ratable interests in the Obligations which were credit bid shall be deemed without any further action under this Agreement to be assigned to such vehicle or vehicles for the purpose of closing such sale, (iii) the Administrative shall be authorized to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or equity interests thereof, shall be governed, directly or indirectly, by, and the governing documents shall provide for, control by the vote of the Required Lenders or their permitted assignees under the terms of this Agreement or the governing documents of the applicable acquisition vehicle or vehicles, as the case may be, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in Section 9.02 of this Agreement), (iv) the Administrative Agent on behalf of such acquisition vehicle or vehicles shall be authorized to issue to each of the Secured Parties, ratably on account of the relevant Obligations which were credit bid, interests, whether as equity, partnership, limited partnership interests or membership interests, in any such acquisition vehicle and/or debt instruments issued by such acquisition vehicle, all without the need for any Secured Party or acquisition vehicle to take any further action, and (v) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of Obligations credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Secured Parties pro rata and the equity interests and/or debt instruments issued by any acquisition vehicle on account of such Obligations shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action. Notwithstanding that the ratable portion of the Obligations of each Secured Party are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (ii) above, each Secured Party shall execute such documents and provide such information regarding the Secured Party (and/or any designee of the Secured Party which will receive interests in or debt instruments issued by such acquisition vehicle) as the Administrative Agent may reasonably request in connection with the formation of any acquisition vehicle, the formulation or submission of any credit bid or the consummation of the transactions contemplated by such credit bid.

Appears in 1 contract

Samples: Credit Agreement (LogMeIn, Inc.)

Appears in 1 contract

Samples: Credit Agreement (Twenty-First Century Fox, Inc.)

The Administrative Agent. Each of the Lenders and ~~each~~ the Letter of Credit Issuer hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. 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 herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.1), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower 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 12.1) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this 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 herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more 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 apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~each~~ the Letter of Credit Issuer and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing~~), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and ~~each~~ the Letter of Credit Issuer, appoint a successor Administrative Agent which shall be a bank with an office in the United States, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 12.5 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 instruments 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. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the ~~Arrangers~~Joint Bookrunners, the ~~Co-Syndication Agents~~ Joint Lead Arrangers and the ~~Co-Documentation Agents~~ Syndication Agent named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Samples: Revolving Credit Agreement (ITC Holdings Corp.)

The Administrative Agent. Each of the Lenders and each ~~Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. 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 ~~herein~~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 ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise as directed in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), ~~and~~ and, (c) except as expressly set forth ~~herein~~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~~ any Loan Party or any ~~of its Subsidiaries~~ Subsidiary 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~herewith~~with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more 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 apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~each Letter of Credit Issuer~~ the Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders shall have the ~~right~~right to appoint a successor, ~~with the consent of~~ such successor to be approved by the Borrower (with such approval not ~~to be~~ unreasonably ~~withheld~~withheld or delayed); provided ~~that no such consent of the Borrower shall be required~~ however, if an Event of Default ~~has occurred and is continuing)~~shall exist at the time of such appointment, ~~to appoint a successor~~no approval shall be required hereunder. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and ~~each Letter of Credit Issuer~~the Issuing Banks, appoint a successor Administrative Agent which shall be a any of the Lenders or any other bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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. Notwithstanding the foregoing, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within thirty (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 Borrower, whereupon, on the date of effectiveness of such resignation stated in such notice, (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, and (b) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, provided that (i) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (ii) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall also directly be given or made to each Lender and each Issuing Bank. Following the effectiveness of the Administrative Agent’s resignation from its capacity as such, the provisions of this Article, Section 2.18(d) and Section 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 Administrative ~~Agent~~Agent and in respect of the matters referred to in the proviso under paragraph (a) above. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not ~~instruments~~ 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~~Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender ~~also acknowledges that it will~~shall, independently and without reliance upon the 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 U.S. securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document, any related agreement or any document furnished hereunder or ~~thereunder~~thereunder and in deciding whether or to the extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder. Notwithstanding anything herein to the ~~contrary~~ contrary, none of the ~~Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named~~ Bookrunners or Lead Arrangers listed on the cover page of hereof shall have any powers, duties or responsibilities under this Agreement ~~shall not have~~ or any ~~duties or liabilities under this Agreement~~of the other Loan Documents, except in its capacity, ~~if any~~as applicable, as the Administrative Agent, a ~~Lender~~Lender or an Issuing Bank hereunder.

Appears in 1 contract

Samples: Credit Agreement (Raven Industries Inc)

Appears in 1 contract

Samples: Credit Agreement (P F Changs China Bistro Inc)

The Administrative Agent. Each of the Lenders and ~~each~~ the Letter of Credit Issuer hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. 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 herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.1), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower 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 12.1) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this 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 herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more 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 apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~each~~ the Letter of Credit Issuer and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing~~), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and ~~each~~ the Letter of Credit Issuer, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section 12.5 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 instruments 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. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the ~~Arrangers~~Sole Bookrunner, the Sole Lead Arranger and the Co-Syndication ~~Agents and the Co-Documentation~~ Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Samples: Revolving Credit Agreement (ITC Holdings Corp.)

Appears in 1 contract

Samples: Credit Agreement (Dendrite International Inc)

The Administrative Agent. Each of the Lenders and ~~each Letter of Credit Issuer~~ the Issuing Lender hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ Lender 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~~ Parent 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 ~~herein~~herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed 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 ~~12.1~~10.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the ~~Borrower~~ Parent 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~~ Majority Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~10.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower~~ Parent or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (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 herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more 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 apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~each Letter of Credit Issuer~~ the Issuing Lender and the ~~Borrower~~Parent. Upon any such resignation, the ~~Required~~ Majority Lenders shall have the right, with the ~~consent~~ approval of ~~the Borrower (~~Parent, which shall not to be unreasonably withheld~~; provided that no such consent of the Borrower~~ , conditioned or delayed, and shall not be required if during the existence of an Event of ~~Default has occurred and is continuing)~~Default, to appoint a successor. If no successor shall have been so appointed by the ~~Required~~ Majority Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and ~~each Letter of Credit Issuer~~the Issuing Lender, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~Houston, Texas, 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 or on behalf of the ~~Borrower~~ Parent to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Parent and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Samples: Credit Agreement (Cardtronics PLC)

The Administrative Agent. Each of the Lenders ~~and each Letter of Credit Issuer~~ hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Bridge Loan Documents, together with such actions and powers as are reasonably incidental thereto. 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 ~~herein~~in the Bridge 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 ~~hereby~~ by the Bridge 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 ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Bridge 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 ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Bridge Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Bridge Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Bridge Loan Document or any other agreement, instrument or ~~document,~~ document or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Bridge Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more 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 apply to their respective activities in connection with the syndication of the credit ~~facilities~~ facility provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the ~~Lenders, each Letter of Credit Issuer~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and each Letter of Credit Issuer~~Lenders, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 instruments 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. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Bridge Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Samples: Bridge Loan Agreement (Symbol Technologies Inc)

Appears in 1 contract

Samples: Credit Agreement (Tupperware Brands Corp)

The Administrative Agent. Each of the Lenders and ~~each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. 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,~~ Agent and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) none of the Administrative ~~Agent~~ Agent, the Syndication Agent, the Co-Documentation Agents and the Lead Arrangers shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is ~~continuing~~continuing (and it is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with respect to the Administrative Agent, the Syndication Agent and the Co-Documentation 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) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby 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 ~~12.1~~9.02), 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 herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the ~~Borrower~~ Company 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 ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct (as determined by a court of competent jurisdiction by a final and ~~non-appealable~~ nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower~~ Company or a ~~Lender~~Lender (in which case the Administrative Agent shall deliver such written notice to the Lenders or the other Lenders), and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (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 herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also ~~may rely~~ shall be entitled to rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank or any other Person, the Administrative Agent may presume that such condition is satisfactory to such Lender or Issuing Bank or such other Person unless the Administrative Agent shall have received notice to the contrary from such Lender or Issuing Bank or such other Person prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~each Letter of Credit Issuer~~ the Issuing Banks and the ~~Borrower~~Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Company, to appoint a successor; provided that such successor shall be a Lender under this Agreement. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and ~~each Letter of Credit Issuer~~the Issuing Banks, appoint a successor Administrative Agent which shall be a ~~bank~~ Lender under this Agreement with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Company and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 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 Administrative Agent. Each Lender and Issuing Bank acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 or Issuing Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or Issuing Bank and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to~~ It is agreed that the ~~contrary the Arrangers, the Co-~~Syndication ~~Agents~~ Agent and ~~the~~ Co-Documentation Agents ~~named on the cover page of this Agreement shall not~~ shall, in their capacities as such, have ~~any~~ no duties or ~~liabilities~~ responsibilities under this Agreement~~, except in its capacity, if any, as a Lender~~.

Appears in 1 contract

Samples: Credit Agreement (Convergys Corp)

Appears in 1 contract

Samples: Credit Agreement (Wright Express CORP)

The Administrative Agent. ~~Each~~ Citibank has been appointed Administrative Agent for the Lenders hereunder pursuant to Section 8.01Article 8 of the ~~Lenders~~ ABL Credit Agreement and, by their acceptance of the benefits hereof, the other Secured Parties. It is expressly understood and ~~each Letter of Credit Issuer hereby irrevocably appoints~~ agreed by the parties to this Security Agreement that any authority conferred upon the Administrative Agent ~~as its agent and authorizes~~ hereunder is subject to the ~~Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated~~ terms of the delegation of authority made by the Lenders to the Administrative Agent by pursuant to the ~~terms hereof~~ABL Credit Agreement, ~~together with such actions~~ and ~~powers as are reasonably incidental thereto. The bank serving as~~ that the Administrative Agent has agreed to act (and any successor Administrative Agent shall act) as such hereunder only on the express conditions contained in such Section 8.01Article 8. Any successor Administrative Agent appointed pursuant to Section 8.01Article 8 of the ABL Credit Agreement shall ~~have~~ be entitled to all the ~~same rights~~ rights, interests and ~~powers in its capacity as a Lender as any~~ benefits of the Administrative Agent hereunder. By accepting the benefits of this Security Agreement and each other ~~Lender~~ Loan Document, each Secured Party expressly acknowledges and agrees that this Security Agreement and each other Loan Document may ~~exercise~~ be enforced only by the ~~same as though it were not~~ action of the Administrative Agent, and that such ~~bank~~ Secured Party shall not have any right individually to seek to enforce or to enforce this Security Agreement or to realize upon the security to be granted hereby, it being understood and ~~its Affiliates~~ agreed that such rights and remedies 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~~ be exercised by the Administrative Agent ~~hereunder~~for the benefit of the Secured Parties upon the terms of this Security Agreement and the other Loan Documents. The Administrative Agent ~~shall not have~~ may rely on advice of counsel as to whether any ~~duties~~ or ~~obligations except those expressly set forth herein. Without limiting the generality~~ all UCC financing statements of the ~~foregoing~~Grantors need to be amended as a result of any of the changes described in Section 5.01(i) of the ABL Credit Agreement. If any Grantor fails to provide information to the Administrative Agent about such changes on a timely basis, ~~(a)~~ the Administrative Agent shall not be ~~subject~~ liable or responsible to any ~~fiduciary or other implied duties~~Secured Party for any failure to maintain a perfected security interest in such Grantor’s property constituting Collateral, ~~regardless of whether a Default has occurred and is continuing, (b)~~ for which the Administrative Agent ~~shall not~~ needed to have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.1), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~the Borrower 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~~such changes. The Administrative Agent shall have no duty to inquire about such changes if any Grantor does 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 12.1) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to inform the Administrative Agent by of such changes, the ~~Borrower~~ Secured Parties acknowledging and agreeing that it would not be feasible or ~~a Lender, and~~ practical for the Administrative Agent ~~shall~~ to search for information on such changes if such information is 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, (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 herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more 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 apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, each Letter of Credit Issuer and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and each Letter of Credit Issuer, appoint a successor Administrative Agent which shall be a bank with an office in the United States, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 12.5 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 instruments 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. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a LenderGrantor.

Appears in 1 contract

Samples: Patent Security Agreement (PQ Group Holdings Inc.)

Appears in 1 contract

Samples: 364 Day Revolving Credit Agreement (NuStar GP Holdings, LLC)

Appears in 1 contract

Samples: Credit Agreement (FelCor Lodging Trust Inc)

Appears in 1 contract

Samples: Credit Agreement (Jackson Hewitt Tax Service Inc)

Appears in 1 contract

Samples: Credit Agreement (FMC Technologies Inc)

The Administrative Agent. Each of the Lenders and ~~each~~ the Letter of Credit Issuer hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. 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 herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.1), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower 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 12.1) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this 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 herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more 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 apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~each~~ the Swingline Lender, the Letter of Credit Issuer and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing~~), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and ~~each~~ the Letter of Credit Issuer, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 12.5 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 instruments 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. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the ~~Arrangers~~Sole Bookrunner, the Sole Lead Arranger and the Co-Syndication ~~Agents and the Co-Documentation~~ Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Samples: Revolving Credit Agreement (ITC Holdings Corp.)

The Administrative Agent. Each of the Lenders and ~~each Letter of Credit Issuer~~ the Issuing Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. 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 herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~8.2), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower 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 ~~12.1~~8.2) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Unmatured Default or Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (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 herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more 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 apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~each Letter of Credit Issuer~~ the Issuing Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the ~~right~~right to appoint a successor (which successor shall be consented to by the Borrower, ~~with the~~ such consent ~~of the Borrower (~~not to be unreasonably ~~withheld~~withheld or delayed; provided that no ~~such~~ consent of the Borrower shall be required if ~~an Event of~~ a Default has occurred and is continuing)~~, to appoint a successor~~. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and ~~each Letter of Credit Issuer~~the Issuing Lenders, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.7 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. If the Person serving as Administrative Agent is a Defaulting Lender, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Borrower and such Person, remove such Person as Administrative Agent and appoint a successor, which appointment shall, provided no Unmatured Default or Default exists, be consented to by the Borrower, which consent shall not be unreasonably withheld or delayed. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective on the Removal Effective Date in accordance with such notice and (1) the removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (2) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section; provided, further that such Lenders so acting directly shall be and be deemed to be protected by all indemnities and other provisions herein for the benefit and protection of the Administrative Agent as if each such Lender were itself the Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not ~~instruments~~ 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~~Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender ~~also acknowledges that it will~~shall, independently and without reliance upon the 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. Notwithstanding anything herein~~ thereunder and in deciding whether or to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, extent to which it will continue as a ~~Lender~~Lender or assign or otherwise transfer its rights, interests and obligations hereunder.

Appears in 1 contract

Samples: Credit Agreement (DDR Corp)

Appears in 1 contract

Samples: Credit Agreement (FMC Technologies Inc)

The Administrative Agent. Each of the Lenders and ~~each Letter of Credit Issuer~~ the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. 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 herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~10.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower 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 ~~12.1~~10.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this 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 herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents (which sub-agents shall be Affiliates of the Administrative Agent or, if selected with reasonable care, any other Person, provided that, if no Default exists, without the consent of the Borrower all material duties of the Administrative Agent shall be performed by the Administrative Agent or one of its Affiliates) 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 apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~each Letter of Credit Issuer~~ the Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders shall have the ~~right~~right to appoint a successor, ~~with~~ subject to the consent of the Borrower (which consent shall not to be unreasonably withheld); provided that ~~no such~~ the Borrower’s consent ~~of the Borrower~~ shall not be required if ~~an Event of~~ a Default ~~has occurred and is continuing), to appoint a successor~~exists. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and ~~each Letter of Credit Issuer~~the Issuing Banks, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein~~ The Administrative Agent shall have no obligation whatsoever to any of the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacityLenders to assure that collateral, if any, for the Loan Party Obligations exists or is owned by the Loan Parties or is cared for, protected, or insured or has been encumbered, or that the Liens granted to the Administrative Agent therein have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Administrative Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of any such collateral, or any act, omission, or event related thereto, the Administrative Agent may act in any manner it may deem appropriate, in its sole discretion given the Administrative Agent’s own interest in such collateral in its capacity as one of the Lenders and that the Administrative Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing. Each Lender hereby appoints each other Lender as its agent for the purpose of perfecting Liens, for the benefit of the Administrative Agent and the Lenders, in assets which, in accordance with Article 9 of the UCC or any other applicable law can be perfected only by possession or control. Should any Lender (other than the Administrative Agent) obtain possession of any such collateral, such Lender shall notify the Administrative Agent thereof, and, promptly upon the Administrative Agent’s request therefor shall deliver such collateral to the Administrative Agent or otherwise deal with such collateral in accordance with the Administrative Agent’s instructions. Each Lender hereby agrees as follows: (a) such Lender is deemed to have requested that the Administrative Agent furnish such Lender, promptly after it becomes available, a copy of each report (the “Reports”) prepared by or on behalf of the Administrative Agent; (b) such Lender expressly agrees and acknowledges that neither the Administrative Agent nor any Related Party (i) makes any representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein, or (ii) shall be liable for any information contained in any Report; (c) such Lender expressly agrees and acknowledges that the Reports are not comprehensive audits or examinations, that the Administrative Agent, any of its Related Parties or any other party performing any audit or examination will inspect only specific information regarding the Loan Parties and will rely significantly upon the Loan Parties’ books and records, as well as on representations of the Loan Parties’ personnel and that the Administrative Agent and its Related Parties undertake no obligation to update, correct or supplement the Reports; (d) such Lender agrees to keep all Reports confidential and strictly for its internal use, not share the Report with any Loan Party and not to distribute any Report to any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, such Lender agrees (i) that neither the Administrative Agent nor any of its Related Parties shall be liable to such Lender or any other Person receiving a copy of the Report for any inaccuracy or omission contained in or relating to a Report, (ii) to conduct its own due diligence investigation and make credit decisions with respect to the Loan Parties based on such documents as such Lender deems appropriate without any reliance on the Reports or on the Administrative Agent or any of its Related Parties, (iii) to hold the Administrative Agent and any such other Person preparing a Report harmless from any action the indemnifying Lender may take or conclusion the indemnifying Lender may reach or draw from any Report in connection with any Loan or Letter of Credit that the indemnifying Lender has made or may make to the Loan Parties, or the indemnifying Lender’s participation in, or the indemnifying Lender’s purchase of, any Loan Party Obligations and (iv) to pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by the Administrative Agent and any such other Person preparing a Report as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. The Lenders hereby empower and authorize the Administrative Agent to execute and deliver to the Loan Parties on their behalf any agreements executed by any Loan Party granting a security interest in any collateral to secure the Loan Party Obligations and all related agreements, documents or instruments as shall be necessary or appropriate to effect the purposes of such documents. In its capacity, the Administrative Agent is a “representative” of the Lenders and their respective Affiliates within the meaning of the term “secured party” as defined in the UCC. The Lenders hereby empower and authorize the Administrative Agent to execute and deliver to the Loan Parties on their behalf any agreements, documents or instruments as shall be necessary or appropriate to effect any releases or subordinations of such collateral which shall be permitted by the terms hereof or of any other Loan Document or which shall otherwise have been approved by the Required Lenders in writing (unless such release is required to be approved by all of the Lenders hereunder), and to take all action contemplated thereby. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release particular types or items of such collateral pursuant hereto. None of the Lenders identified in this Agreement as the Syndication Agent or as a documentation agent or other similar title shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as Lenders. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. Except with respect to the exercise of setoff rights of any Lender, in accordance with Section 10.08, the proceeds of which are applied in accordance with this Agreement, each Lender agrees that it will not take any action, nor institute any actions or proceedings, against any Loan Party or with respect to any Loan Document, without the prior written consent of the Required Lenders or, as may be provided in this Agreement or the other Loan Documents, with the consent of the Administrative Agent. The Administrative Agent shall have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest and other amounts due under the Obligations. Each Lender agrees that no Lender (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Loan Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Lenders upon the terms of the Loan Documents.

Appears in 1 contract

Samples: Credit Agreement (Schneider National, Inc.)

The Administrative Agent. Each of the Lenders ~~and each Letter of Credit Issuer~~ hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article (other than the sixth and seventh paragraphs of this Article set forth below) are solely for the benefit of the Administrative Agent and the Lenders, and the Borrower shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” as used herein (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~~ Company 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 herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~10.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the ~~Borrower~~ Company or any of its Subsidiaries that is communicated to or obtained by the bank serving as the 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 ~~12.1~~10.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed ~~not~~ to have no knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower~~ Company or a Lender, and the 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, (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 herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by ~~the Administrative Agent~~it. 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 apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders and the Company. The Administrative Agent may be removed at any time that it constitutes a Defaulting Lender by written notice received by the Administrative Agent from the Required Lenders, ~~each Letter of Credit Issuer and~~ such removal to be effective on the ~~Borrower~~date specified by the Required Lenders. Upon any such ~~resignation~~resignation or removal, the ~~Required Lenders~~ Company shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Required Lenders, to appoint a successor. If no successor shall have been so appointed by the ~~Required Lenders~~ Company and shall have accepted such appointment within 30 days after the ~~retiring~~ Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and each Letter of Credit Issuer~~Lenders, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as the Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Company to a the successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Company and such successor. After the Administrative Agent’s resignation or removal hereunder, the provisions of this Article and Section ~~12.5~~ 10.03 shall continue in effect for the benefit of ~~such~~ the 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 the Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein~~ None of the Lenders, if any, identified in this Agreement as a Co-Syndication Agent or a Documentation 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 Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the ~~contrary the Arrangers, the~~ relevant Lenders in their respective capacities as Co-Syndication Agents or Documentation Agent, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph. The Lenders are not partners or co-venturers, and no Lender shall be liable for the ~~Co-Documentation Agents named~~ acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the ~~cover page~~ Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this ~~Agreement shall not have any duties or liabilities under this~~ Agreement~~, except in its capacity, if any, as a Lender~~.

Appears in 1 contract

Samples: Credit Agreement (Brown Forman Corp)

Appears in 1 contract

Samples: Credit Agreement (FMC Technologies Inc)

Appears in 1 contract

Samples: Graphic Omitted (Dendrite International Inc)

Appears in 1 contract

Samples: Credit Agreement (Delhaize America Inc)

Appears in 1 contract

Samples: Revolving Credit Agreement (Valero Energy Corp/Tx)

Appears in 1 contract

Samples: Credit Agreement (Pulte Homes Inc/Mi/)

The Administrative Agent. Each of the Lenders and ~~each Letter of Credit Issuer~~ the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. 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 herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise as directed in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower 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 ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this 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 herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more 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 apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~each Letter of Credit Issuer~~ the Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and ~~each Letter of Credit Issuer~~the Issuing Banks, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 (i) while it was acting as Administrative Agent and (ii) after such resignation or removal for as long as any of them continues to act in any capacity hereunder or under any agreement or instrument contemplated hereby, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. None of the Joint Lead Arrangers, Co-Syndication Agents or Co-Documentation Agents shall have any duties, responsibilities or liabilities under this Agreement and the other Loan Documents other than the duties, responsibilities and liabilities assigned to such entities in their capacities as Lenders (or Issuing Banks, if applicable) hereunder. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not ~~instruments~~ 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 that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this ~~Agreement~~Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender ~~also acknowledges that it will~~shall, independently and without reliance upon the 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. Notwithstanding anything herein~~ thereunder and in deciding whether or to the ~~contrary~~ extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder. Each Lender and each Issuing Bank hereby authorizes the ~~Arrangers~~Administrative Agent to release any Collateral that is permitted to be sold or released pursuant to the terms of the Loan Documents and to release any Guarantor from the Guaranty Agreement to which it is a party pursuant to the terms thereof and further agrees that any determination with respect to the inclusion or exclusion of any asset as Collateral, including without limitation, pursuant to Section 5.09, shall be made by the Administrative Agent in its sole discretion (and the Administrative Agent shall have no liability in respect thereof). Each Lender and each Issuing Bank hereby authorizes the Administrative Agent to execute and deliver to the Borrower, at the Borrower’s sole cost and expense, any and all releases of Liens, termination statements, assignments or other documents reasonably requested by the Borrower in connection with any sale or other disposition of Property to the extent such sale or other disposition is permitted by the terms of Section 6.08 or is otherwise authorized by the terms of the Loan Documents. No Joint Lead Arranger, Co-Syndication ~~Agents and the~~ Agent, Co-Documentation ~~Agents named~~ Agent or Lender identified on the cover page of this Agreement (other than the Administrative Agent) shall ~~not~~ have any ~~duties~~ right, power, obligation, liability, responsibility or ~~liabilities~~ duty under this ~~Agreement~~Agreement other than those applicable to all Lenders in their capacity as such. Without limiting the foregoing, ~~except~~ no Joint Lead Arranger or Lender identified on the cover page as a “co-syndication agent” or “co-documentation agent” (or any similar title) shall have or be deemed to have any fiduciary relationship with any Joint Lead Arranger or any Lender. Each Lender acknowledges that it has not relied, and will not rely, on the Administrative Agent, any Joint Lead Arranger or any other Lender so identified in ~~its capacity~~deciding to enter into this Agreement or in taking or not taking any action hereunder. The Secured Parties hereby irrevocably authorize the Administrative Agent, ~~if any~~at the direction of the Required Lenders, to credit bid all or any portion of the Obligations (including by accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar laws in any other jurisdictions to which a Loan Party is subject, or (b) at any other sale, foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid by the Administrative Agent at the direction of the Required Lenders on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that shall vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) for the asset or assets so purchased (or for the equity interests or debt instruments of the acquisition vehicle or vehicles that are issued in connection with such purchase). In connection with any such bid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or vehicles (ii) each of the Secured Parties’ ratable interests in the Obligations which were credit bid shall be deemed without any further action under this Agreement to be assigned to such vehicle or vehicles for the purpose of closing such sale, (iii) the Administrative shall be authorized to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or equity interests thereof, shall be governed, directly or indirectly, by, and the governing documents shall provide for, control by the vote of the Required Lenders or their permitted assignees under the terms of this Agreement or the governing documents of the applicable acquisition vehicle or vehicles, as the case may be, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in Section 9.02 of this Agreement), (iv) the Administrative Agent on behalf of such acquisition vehicle or vehicles shall be authorized to issue to each of the Secured Parties, ratably on account of the relevant Obligations which were credit bid, interests, whether as equity, partnership, limited partnership interests or membership interests, in any such acquisition vehicle and/or debt instruments issued by such acquisition vehicle, all without the need for any Secured Party or acquisition vehicle to take any further action, and (v) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a ~~Lender~~result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of Obligations credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Secured Parties pro rata and the equity interests and/or debt instruments issued by any acquisition vehicle on account of such Obligations shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action. Notwithstanding that the ratable portion of the Obligations of each Secured Party are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (ii) above, each Secured Party shall execute such documents and provide such information regarding the Secured Party (and/or any designee of the Secured Party which will receive interests in or debt instruments issued by such acquisition vehicle) as the Administrative Agent may reasonably request in connection with the formation of any acquisition vehicle, the formulation or submission of any credit bid or the consummation of the transactions contemplated by such credit bid.

Appears in 1 contract

Samples: Credit Agreement (Tesoro Corp /New/)

Appears in 1 contract

Samples: Credit Agreement (Exco Resources Inc)

The Administrative Agent. Each of the Lenders ~~and each Letter of Credit Issuer~~ hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders, and the Borrowers 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 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~~ Loan Parties or any ~~Subsidiary~~ subsidiary of a Loan Party 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 ~~herein~~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 ~~hereby~~ 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 or believed by the Administrative Agent in good faith to be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~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~~ any Borrower or any ~~of its Subsidiaries~~ Subsidiary 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 ~~12.1~~9.02 or believed by the Administrative Agent in good faith to be necessary) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower~~ Loan Party Representative or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~herewith~~with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vvi) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Adobe pdf file, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~Loan Parties), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent, provided that the Administrative Agent shall remain liable for the performance of such obligations and duties. 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, provided that the Administrative Agent shall remain liable for the performance of such obligations and duties. The exculpatory provisions of ~~the preceding paragraphs~~ this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. 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. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~by notifying~~ upon notice to the ~~Lenders, each Letter of Credit Issuer~~ Lenders and the ~~Borrower~~Loan Party Representative. Upon any such resignation, the Required Lenders shall have the right, with the consent of the ~~Borrower (not to be unreasonably withheld; provided that no such consent~~ Loan Party Representative in the absence of ~~the Borrower shall be required if an~~ a continuing Event of Default ~~has occurred and is continuing),~~ to appoint a successor. If no successor shall have been so appointed by the Loan Party Representative and the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and each Letter of Credit Issuer~~Lenders, appoint a successor Administrative Agent ~~which~~ that shall be a commercial bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such commercial bank, in either case, acceptable to the Loan Party Representative in the absence of a continuing Event of Default (such acceptance not to be unreasonably withheld or delayed). 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 all its duties and obligations ~~hereunder~~under the Loan Documents. The fees payable by the ~~Borrower~~ Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed in writing between the ~~Borrower~~ Loan Party Representative and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 instruments 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 or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein~~ Each Lender hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, express or implied, as to the ~~contrary~~ completeness or accuracy of any Report or any of the ~~Arrangers, the Co-Syndication Agents~~ information contained therein or any inaccuracy or omission contained in or relating to a Report and ~~the Co-Documentation Agents named on the cover page of this Agreement~~ (ii) shall not ~~have~~ be liable for any ~~duties~~ information contained in any Report; (c) the Reports are not comprehensive audits or ~~liabilities under~~ examinations, and that any Person performing any field examination will inspect only specific information regarding the Loan Parties and will rely significantly upon the Loan Parties’ books and records, as well as on representations of the Loan Parties’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, not share the Report with any Loan Party or any other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the generality of any other indemnification provision contained in this Agreement, ~~except in its capacity~~it will pay and protect, ~~if any~~and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as a the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.

Appears in 1 contract

Samples: Credit Agreement (Usg Corp)

Appears in 1 contract

Samples: Credit Agreement (Tupperware Brands Corp)

Appears in 1 contract

Samples: Credit Agreement (Fisher Scientific International Inc)

The Administrative Agent. Each of the Lenders and ~~each Letter of Credit Issuer~~ the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders, and neither the Company nor any other Borrower 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. Any Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Company 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 herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~10.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the ~~Borrower~~ Company or any ~~of its Subsidiaries~~ Subsidiary that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~10.02) 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 by a final and non-appealable judgment~~jurisdiction. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower~~ Company or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ under any Loan Document or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or ~~document~~document (including, for the avoidance of doubt, in connection with the Administrative Agent’s reliance on any Electronic Signature transmitted by telecopy, emailed pdf, or any other electronic means that reproduces an image of an actual executed signature page), or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more 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 apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~each Letter of Credit Issuer~~ the Issuing Bank and the ~~Borrower~~Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 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 ~~each Letter of Credit Issuer~~the Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Company and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 10.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender ~~acknowledges~~ and ~~agrees~~ each Issuing Bank represents and warrants that (i) the ~~extensions~~ Loan Documents set forth the terms of ~~credit made hereunder are~~ a commercial ~~loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents that~~ lending facility, (ii) 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 such Issuing Bank, in each case in the ordinary course of ~~its business~~ business, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument (and each Lender and each Issuing Bank agrees not to assert a claim in contravention of the foregoing), (iii) it has, independently and without reliance upon the Administrative Agent, any Arranger, any Co-Sustainability Structuring Agent, any Syndication Agent, any Co-Documentation Agent or any other Lender or other 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~~Agreement as a Lender, and to make, acquire or hold Loans hereunder and (iv) it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or such Issuing Bank, and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent, any Arranger, any Co-Sustainability Structuring Agent, any Syndication Agent, any Co-Documentation Agent or any other Lender or other Issuing Bank, or any of the Related Parties of any of the foregoing, 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 Company and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to~~ Each Lender and each Issuing Bank also acknowledges and agrees that (a) none of the ~~contrary the Arrangers~~Administrative Agent, ~~the~~ any Arranger or any Co-Sustainability Structuring Agent acting in such capacities have made any assurances as to (i) whether the credit facility evidenced by this Agreement (the “Facility”) meets such Lender’s or such Issuing Bank’s criteria or expectations with regard to environmental impact and sustainability performance, (ii) whether any characteristics of the Facility, including the characteristics of the relevant key performance indicators to which the Company will link a potential margin step-up or step-down, including their environmental and sustainability criteria, meet any industry standards for sustainability-linked credit facilities and (b) such Lender and such Issuing Bank has performed its own independent investigation and analysis of the Facility and whether the Facility meets its own criteria or expectations with regard to environmental impact and/or sustainability performance. None of any Syndication ~~Agents and the~~ Agent, any Co-Documentation ~~Agents named~~ Agent, any Arranger or any Co-Sustainability Structuring Agent 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 indemnities provided for hereunder. Each party to this Agreement agrees that neither the Administrative Agent nor any Co-Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by the Company of any Sustainability Fee Adjustment or any Sustainability Margin Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry). Each Lender, by delivering its signature page to this Agreement on the ~~cover~~ Effective Date, or delivering its signature page ~~of this Agreement~~ to an Assignment and Assumption or any other Loan Document pursuant to which it shall ~~not~~ become a Lender hereunder, shall be deemed to have ~~any duties~~ acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or ~~liabilities under this Agreement~~be approved by or satisfactory to, ~~except in its capacity, if any, as a Lender~~the Administrative Agent or the Lenders on the Effective Date.

Appears in 1 contract

Samples: Credit Agreement (Cabot Corp)

Appears in 1 contract

Samples: Pacific Sunwear of California Inc

Appears in 1 contract

Samples: Credit Agreement (Exco Resources Inc)

The Administrative Agent. Each of the Lenders and each ~~Letter of Credit~~ LC Issuer hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. 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~~ any 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 herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Potential Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby 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 ~~12.1~~8.2), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the ~~Borrower~~ Parent 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 ~~12.1~~8.2) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default or Potential Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (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 herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more 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 apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Each of the European Administrative Agent and the Canadian Administrative Agent shall be deemed to be a sub-agent of the Administrative Agent for all purposes of this Agreement and entitled to the benefits of this Article X. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~each Letter of Credit Issuer~~ the LC Issuers and the ~~Borrower~~Parent. Upon any such resignation, the Required Lenders shall have the ~~right~~right to appoint a successor which, ~~with~~ if no Default under Sections 7.2, 7.6 or 7.7 exists, is approved by the ~~consent of the Borrower~~ Parent (which approval will not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing~~)~~, to appoint a successor~~. If no successor shall have been so appointed by the Required Lenders (and if applicable, approved by the Parent) and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and ~~each Letter of Credit Issuer~~the LC Issuers, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Parent to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Parent and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.6 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to~~ Neither any of the ~~contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of~~ Lenders identified in this Agreement as a “co-agent” nor any Syndication Agent shall ~~not~~ have any ~~duties~~ right, power, obligation, liability, responsibility or ~~liabilities~~ duty under this ~~Agreement~~Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, ~~except in its capacity, if any, as~~ none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender.

Appears in 1 contract

Samples: Credit Agreement (Cameron International Corp)

Appears in 1 contract

Samples: Credit Agreement (Service Corporation International)

The Administrative Agent. Each of the Lenders and ~~each Letter of Credit Issuer~~ the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes ~~the~~ Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to ~~the~~ Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and the Borrower shall not have rights as a third-party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties. The entity 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~~ was not the Administrative Agent, and such ~~bank~~ entity 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~~ was not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02); provided that the Administrative Agent will not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt, any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the ~~bank~~ entity serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section ~~12.1~~9.02 and Article VII) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and ~~non-appealable~~ nonappealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this ~~Agreement~~Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection ~~herewith~~herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this ~~Agreement~~ Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase 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 Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers 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 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 not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub agents. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~each Letter of Credit Issuer~~ the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the ~~consent of the Borrower~~ Borrower’s approval (which will not to be unreasonably ~~withheld; provided that no such consent of~~ withheld or delayed, and the ~~Borrower~~ Borrower’s approval shall not be required if an Event of Default has occurred ~~and~~ which is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, with the Borrower’s approval (which will not be unreasonably withheld or delayed, and the Borrower’s approval shall not be required if an Event of Default has occurred which is continuing), on behalf of the Lenders and ~~each Letter of Credit Issuer~~the Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank and such bank, or its Affiliate, as applicable, shall have capital and surplus equal to or greater than $500,000,000. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, 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~~ an Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. ~~Each Lender acknowledges~~ In addition to the foregoing, subject to the appointment and ~~agrees that~~ acceptance of one or more successor Xxxxxxx Xxxxx as provided in this paragraph, the ~~extensions~~ Issuing Bank may resign at any time by notifying the Administrative Agent, the Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the Borrower’s approval (which will not be unreasonably withheld or delayed, and the Borrower’s approval shall not be required if an Event of ~~credit made~~ Default has occurred which is continuing), to appoint one or more successors. If no successors shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Issuing Bank gives notice of its resignation, then the retiring Issuing Bank may, with the Borrower’s approval (which will not be unreasonably withheld or delayed, and the Borrower’s approval shall not be required if an Event of Default has occurred which is continuing), on behalf of the Lenders, appoint one or more successor Issuing Banks which each 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 an Issuing Bank hereunder ~~are commercial loans~~ by a successor, (i) such successor shall succeed to and ~~letters~~ become vested with all of ~~credit~~ the rights, powers, privileges and ~~not instruments~~ duties of the resigning Issuing Bank, (ii) the resigning Issuing Bank shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents and (iii) such successor Issuing Bank(s) shall issue Letters of Credit in ~~a business enterprise~~ substitution for the Letters of Credit, if any, outstanding at the time of such succession or ~~securities~~make other arrangements satisfactory to the resigning Issuing Bank to effectively assume the obligations of the resigning Issuing Bank with respect to such Letters of Credit. The fees payable by the Borrower to each successor Issuing Bank shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. Each Lender ~~further represents~~ and Issuing Bank acknowledges 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 or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to~~ None of the ~~contrary the~~ Joint Lead Arrangers, Joint Bookrunners, the ~~Co-~~Documentation Agents or the Syndication Agents shall have any right, power, obligation, liability, responsibility or duty under this Agreement or any of the other Loan Documents other than those applicable to all Lenders as such. Without limiting the foregoing, none of the Joint Lead Arrangers, Joint Bookrunners, the Documentation Agents or the Syndication Agents shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to each of the Joint Lead Arrangers, Joint Bookrunners, the Documentation Agents and the ~~Co-Documentation~~ Syndication Agents ~~named~~ as it makes with respect to the Administrative Agent in the immediately preceding paragraph of this Article VIII. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to Xxxxxxxx, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the ~~cover page of this Agreement~~ Borrower) shall be entitled and empowered (but not ~~have any duties~~ obligated) by intervention in such proceeding or ~~liabilities under this Agreement, except in its capacity, if any, as a Lender.~~otherwise:

Appears in 1 contract

Samples: Commitment Increase Agreement (Williams Randa Duncan)

Appears in 1 contract

Samples: Credit Agreement (Digital Generation Systems Inc)

Appears in 1 contract

Samples: Credit Agreement (Nielsen Media Research Inc)

The Administrative Agent. Each of the Lenders and ~~each Letter of Credit Issuer~~ the Issuing Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. 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 herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~8.2), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower 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 ~~12.1~~8.2) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Unmatured Default or Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (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 herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more 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 apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~each Letter of Credit Issuer~~ the Issuing Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the ~~right~~right to appoint a successor (which successor shall be consented to by the Borrower, ~~with the~~ such consent ~~of the Borrower (~~not to be unreasonably ~~withheld~~withheld or delayed; provided that no ~~such~~ consent of the Borrower shall be required if ~~an Event of~~ a Default has occurred and is continuing)~~, to appoint a successor~~. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and ~~each Letter of Credit Issuer~~the Issuing Lenders, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~Cleveland, Ohio, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.7 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. If the Person serving as Administrative Agent is a Defaulting Lender, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Borrower and such Person, remove such Person as Administrative Agent and appoint a successor, which appointment shall, provided no Unmatured Default or Default exists, be consented to by the Borrower, which consent shall not be unreasonably withheld or delayed. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective on the Removal Effective Date in accordance with such notice and (1) the removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (2) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section; provided, further that such Lenders so acting directly shall be and be deemed to be protected by all indemnities and other provisions herein for the benefit and protection of the Administrative Agent as if each such Lender were itself the Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not ~~instruments~~ 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 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~~Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender ~~also acknowledges that it will~~shall, independently and without reliance upon the Administrative Agent or any other Lender and their respective Related Parties 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. Notwithstanding anything herein~~ thereunder and in deciding whether or to the ~~contrary~~ extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder. The provisions of this Article X shall survive the ~~Arrangers~~repayment of the Loans, the ~~Co-Syndication Agents~~ expiration or termination of the Aggregate Commitments and the ~~Co-Documentation Agents named on the cover page~~ termination of this ~~Agreement shall not have any duties or liabilities under this~~ Agreement~~, except in its capacity, if any, as a Lender~~.

Appears in 1 contract

Samples: Credit Agreement (Retail Value Inc.)

The Administrative Agent. Each of the Lenders ~~and each Letter of Credit Issuer~~ hereby irrevocably appoints the ~~Administrative Agent~~ Agents as its ~~agent~~ agents and authorizes the ~~Administrative Agent~~ Agents to take such actions on its behalf and to exercise such powers as are delegated to ~~the Administrative Agent~~ them by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ entity serving as the Administrative Agent ~~hereunder~~ or the Collateral Agent shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent or the Collateral Agent, and ~~such bank~~ entity 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~~or the Collateral Agent. The ~~Administrative Agent~~ Agents shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the ~~Administrative Agent~~ Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative~~ neither Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers ~~expressly contemplated hereby that~~ that, under the ~~Administrative~~ terms of the Loan Documents, 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~~ circumstances, as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the ~~Administrative Agent~~ Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of ~~its~~ the Subsidiaries that is communicated to or obtained by the ~~bank~~ entity serving as ~~Administrative~~ an Agent or any of its Affiliates in any capacity. ~~The Administrative~~ Neither Agent shall ~~not~~ be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. ~~The Administrative~~ Neither Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by the Borrower or a Lender, and ~~the Administrative~~ neither Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or ~~document,~~ document or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to ~~the Administrative~~ such Agent. ~~The Administrative~~ Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. ~~The Administrative~~ Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The ~~Administrative Agent~~ Agents may consult with legal counsel (who may be counsel for the Borrower), 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. ~~The Administrative~~ 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 ~~the Administrative Agent~~it. ~~The Administrative~~ 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 shall apply to any such sub-agent and to the Related Parties of the ~~Administrative Agent~~ Agents 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 ~~Administrative~~ an Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the ~~Lenders, each Letter of Credit Issuer~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the ~~Borrower (not~~ Borrower, to ~~be unreasonably withheld~~appoint a successor; provided that no such consent of the Borrower shall not be required if an Event of Default has occurred and is ~~continuing), to appoint a successor~~continuing at the time of such appointment. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders ~~and each Letter of Credit Issuer,~~ appoint a successor Administrative Agent (with the consent of the Borrower, provided that such consent of the Borrower shall not be required if an Event of Default has occurred and is continuing at the time of such appointment) which shall be a ~~bank~~ financial institution with an office in ~~the United States~~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 in writing between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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. Subject to the appointment and acceptance of a successor Collateral Agent as provided in this paragraph, the Collateral Agent may resign at any time by notifying the Administrative Agent, the Lenders and the Borrower. Upon any such resignation, the Administrative Agent shall have the right, with the consent of the Borrower, to appoint a successor; provided that such consent of the Borrower shall not be required if an Event of Default has occurred and is continuing at the time of such appointment. Upon the acceptance of its appointment as 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 Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. After the Collateral Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Collateral 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 Collateral Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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~~ either Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon ~~the Administrative~~ either Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Samples: Term Credit Agreement (Sirius Xm Radio Inc.)

The Administrative Agent. Each of the Lenders and each ~~Letter of Credit~~ LC Issuer hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. 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~~ any 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 herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Potential Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby 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 ~~12.1~~8.2), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the ~~Borrower~~ Parent 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 ~~12.1~~8.2) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default or Potential Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (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 herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more 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 apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Each of the European Administrative Agent and the Canadian Administrative Agent shall be deemed to be a sub-agent of the Administrative Agent for all purposes of this Agreement and entitled to the benefits of this Article X. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~each Letter of Credit Issuer~~ the LC Issuers and the ~~Borrower~~Parent. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Parent, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and ~~each Letter of Credit Issuer~~the LC Issuers, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Parent to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Parent and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.6 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to~~ Neither any of the ~~contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of~~ Lenders identified in this Agreement as a "co-agent" nor any Syndication Agent shall ~~not~~ have any ~~duties~~ right, power, obligation, liability, responsibility or ~~liabilities~~ duty under this ~~Agreement~~Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, ~~except in its capacity, if any, as~~ none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender.

Appears in 1 contract

Samples: Credit Agreement (Cameron International Corp)

Appears in 1 contract

Samples: Credit Agreement (Fox Corp)

The Administrative Agent. Each of the Lenders and ~~each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. 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,~~ 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 herein. Without limiting the generality of the foregoing, (a) neither the Administrative Agent nor the Syndication Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby 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 ~~12.1~~9.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower 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 ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a ~~Lender~~Lender (in which case the Administrative Agent shall deliver such written notice to the Lenders or the other Lenders), and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (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 herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more 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 apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~each Letter of Credit Issuer~~ the Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor, provided that such successor shall be a Lender under this Agreement. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and ~~each Letter of Credit Issuer~~the Issuing Banks, appoint a successor Administrative Agent which shall be a ~~bank~~ Lender under this Agreement with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 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 and Issuing Bank acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments 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 or Issuing Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or Issuing Bank and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to~~ It is agreed that the ~~contrary the Arrangers, the Co-~~Syndication ~~Agents~~ Agent and ~~the~~ Co-Documentation Agents ~~named on the cover page of this Agreement shall not~~ shall, in their capacities as such, have ~~any~~ no duties or ~~liabilities~~ responsibilities under this Agreement~~, except in its capacity, if any, as a Lender~~.

Appears in 1 contract

Samples: Revolving Credit Facility Agreement (Convergys Corp)

Appears in 1 contract

Samples: Credit Facility Agreement (ITT Corp)

Appears in 1 contract

Samples: Credit Agreement (National Fuel Gas Co)

Appears in 1 contract

Samples: Credit Agreement (FMC Technologies Inc)

Appears in 1 contract

Samples: Credit Agreement (Pulte Homes Inc/Mi/)

Appears in 1 contract

Samples: Credit Agreement (Kinder Morgan Inc)

Common use of The Administrative Agent Clause in Contracts