Rights of Agents. (a) Each of the Lenders hereby irrevocably appoints (i) the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of the Second Priority Loan Documents, together with such actions and powers as are reasonably incidental thereto, and (ii) the Collateral Agent as its agent and authorizes the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms of the Second Priority Loan Documents, together with such actions and powers as are reasonably incidental thereto. (b) The financial institutions serving as the Agents hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and such financial institutions and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or any Affiliate of any of the foregoing as if they were not Agents hereunder. (c) No Agent shall have any duties or obligations except those expressly set forth in the Second Priority Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Second Priority Loan Documents that such Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) and (c) except as expressly set forth in the Second Priority Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Borrower or any of the Subsidiaries that is communicated to or obtained by the financial institution serving as such Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction by final and non-appealable judgment). No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, as applicable, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Second Priority Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Second Priority Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Second Priority Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Second Priority Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. (d) Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each 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. Any 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. (e) Each Agent may perform any and all of its duties and exercise any and all of its rights and powers by or through any one or more sub-agents appointed by such Agent. Any Agent and any such sub-agent may perform any and all of its duties and exercise any and all of its rights and powers through their Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of any Agent and any such sub-agent, and shall apply to their activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Agent. (f) Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent (which shall be a financial institution with an office in New York, New York, or an Affiliate of any such financial institution). Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After an Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. (g) Each Lender acknowledges that it has, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Second Priority Loan Document or related agreement or any document furnished hereunder or thereunder. (h) Each party hereto authorizes the Administrative Agent to enter into customary intercreditor agreements in connection with Qualified Receivables Transactions and factoring transactions permitted under this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Rite Aid Corp), Credit Agreement (Rite Aid Corp)
Rights of Agents. (a) Each of the Lenders and each Issuing Bank hereby irrevocably appoints (i) the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of the Second Priority Senior Loan Documents, together with such actions and powers as are reasonably incidental thereto, and (ii) the Collateral Agent as its agent and authorizes the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms of the Second Priority Senior Loan Documents, together with such actions and powers as are reasonably incidental thereto and (iii) the Borrowing Base Agent as its agent and authorizes the Borrowing Base Agent to take such actions on its behalf and to exercise such powers as are delegated to the Borrowing Base Agent by the terms of this Agreement, together with such actions and powers as are reasonably incidental thereto.
(b) The financial institutions serving as the Agents hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and such financial institutions and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or any Affiliate of any of the foregoing as if they were not Agents hereunder.
(c) No Agent shall have any duties or obligations except those expressly set forth in the Second Priority Senior Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Second Priority Senior Loan Documents that such Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 2.20 or 9.02) and (c) except as expressly set forth in the Second Priority Senior Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Borrower or any of the Subsidiaries that is communicated to or obtained by the financial institution serving as such Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 2.20 or 9.02) or in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction by final and non-appealable judgment). No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, as applicable, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Second Priority Senior Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Second Priority Senior Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Second Priority Senior Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Second Priority Senior Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent.
(d) Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each 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. Any 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.
(e) Each Agent may perform any and all of its duties and exercise any and all of its rights and powers by or through any one or more sub-agents appointed by such Agent. Any Agent and any such sub-agent may perform any and all of its duties and exercise any and all of its rights and powers through their Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of any Agent and any such sub-agent, and shall apply to their activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Agent.
(f) Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowerBorrower (it being understood that, if at any time there are two or more institutions acting as Borrowing Base Agents under this Agreement, the resignation of any Borrowing Base Agent shall not be subject to the appointment and acceptance of a successor Borrowing Base Agent). Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Banks, appoint a successor Agent (which shall be a financial institution with an office in New York, New York, or an Affiliate of any such financial institution). Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After an Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent.
(g) If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, by notice in writing to the Borrower and such Person, remove such Person as Administrative Agent. Upon any such removal, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the Required Lenders give notice of such removal, then such removal shall nonetheless become effective in accordance with such notice. 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 removed Administrative Agent, and the removed 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 removal hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such removed 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.
(h) Each Lender acknowledges that it has, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Second Priority Senior Loan Document or related agreement or any document furnished hereunder or thereunder.
(hi) Each party hereto authorizes the Administrative Agent to enter into customary intercreditor agreements in connection with Qualified Receivables Securitizations and Factoring Transactions and factoring transactions permitted under this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Rite Aid Corp), Credit Agreement (Rite Aid Corp)
Rights of Agents. (a) Each of the Lenders and each Issuing Bank hereby irrevocably appoints (i) the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of the Second Priority Senior Loan Documents, together with such actions and powers as are reasonably incidental thereto, and (ii) the Collateral Agent as its agent and authorizes the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms of the Second Priority Senior Loan Documents, together with such actions and powers as are reasonably incidental thereto and (iii) the Borrowing Base Agent as its agent and authorizes the Borrowing Base Agent to take such actions on its behalf and to exercise such powers as are delegated to the Borrowing Base Agent by the terms of this Agreement, together with such actions and powers as are reasonably incidental thereto.
(b) The financial institutions serving as the Agents hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and such financial institutions and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or any Affiliate of any of the foregoing as if they were not Agents hereunder.
(c) No Agent shall have any duties or obligations except those expressly set forth in the Second Priority Senior Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Second Priority Senior Loan Documents that such Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 2.20 or 9.02) and (c) except as expressly set forth in the Second Priority Senior Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Borrower or any of the Subsidiaries that is communicated to or obtained by the financial institution serving as such Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 2.20 or 9.02) or in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction by final and non-appealable judgment). No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, as applicable, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Second Priority Senior Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Second Priority Senior Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Second Priority Senior Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Second Priority Senior Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent.
(d) Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each 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. Any 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.
(e) Each Agent may perform any and all of its duties and exercise any and all of its rights and powers by or through any one or more sub-agents appointed by such Agent. Any Agent and any such sub-agent may perform any and all of its duties and exercise any and all of its rights and powers through their Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of any Agent and any such sub-agent, and shall apply to their activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Agent.
(f) Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowerBorrower (it being understood that, if at any time there are two or more institutions acting as Borrowing Base Agents under this Agreement, the resignation of any Borrowing Base Agent shall not be subject to the appointment and acceptance of a successor Borrowing Base Agent). Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Banks, appoint a successor Agent (which shall be a financial institution with an office in New York, New York, or an Affiliate of any such financial institution). Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After an Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent.
(g) If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, by notice in writing to the Borrower and such Person, remove such Person as Administrative Agent. Upon any such removal, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the Required Lenders give notice of such removal, then such removal shall nonetheless become effective in accordance with such notice. 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 removed Administrative Agent, and the removed 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 removal hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such removed 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.
(h) Each Lender acknowledges that it has, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Second Priority Senior Loan Document or related agreement or any document furnished hereunder or thereunder.
(hi) Each party hereto authorizes the Administrative Agent to enter into customary intercreditor agreements in connection with Qualified Receivables Securitizations and Factoring Transactions and factoring transactions permitted under this Agreement.
(j) The Senior Loan Secured Parties irrevocably authorize each of the Administrative Agent and the Collateral Agent, at its option and in its discretion, but subject to the applicable provisions of this Agreement (including any required approval of the Borrowing Base Agent contemplated by the definition of the term “Split-Priority Implementing Agreements”), to negotiate, execute and deliver (i) Split-Priority Implementing Agreements and/or a Permitted Split Priority Intercreditor Agreement, which, among other things, will subordinate any Lien on any Non-ABL Priority Collateral granted to or held by the Collateral Agent under any Senior Collateral Documents, or otherwise securing any Senior Obligations, to the Liens on such Non-ABL Priority Collateral securing Permitted Split-Priority Term Loan Debt, and will permit Liens on ABL Priority Collateral to secure, on a subordinated basis to the Liens securing Senior Obligations, obligations in respect of Permitted Split-Priority Term Loan Debt and (ii) any amendments to this Agreement or the other Senior Loan Documents deemed appropriate by the Administrative Agent or the Collateral Agent, as the case may be, to reflect and accommodate the incurrence of Permitted Split-Priority Term Loan Debt, including amendments contemplated by Section 9.02(d) and Section 9.18.
(k) Anything herein to the contrary notwithstanding, none of the Bookrunners, Lead Arrangers, Syndication Agent or Co-Documentation Agents listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any other Loan Documents, except in its capacity, as an Agent, a Lender, an LC Issuer or the Swingline Lender hereunder.
Appears in 1 contract
Sources: Credit Agreement (Rite Aid Corp)
Rights of Agents. (a) Each of the Lenders and each Issuing Bank hereby irrevocably appoints (i) the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of the Second Priority Senior Loan Documents, together with such actions and powers as are reasonably incidental thereto, and (ii) the Collateral Agent as its agent and authorizes the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms of the Second Priority Senior Loan Documents, together with such actions and powers as are reasonably incidental thereto and (iii) the Borrowing Base Agent as its agent and authorizes the Borrowing Base Agent to take such actions on its behalf and to exercise such powers as are delegated to the Borrowing Base Agent by the terms of this Agreement, together with such actions and powers as are reasonably incidental thereto.
(b) The financial institutions serving as the Agents hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and such financial institutions and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or any Affiliate of any of the foregoing as if they were not Agents hereunder.
(c) No Agent shall have any duties or obligations except those expressly set forth in the Second Priority Senior Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Second Priority Senior Loan Documents that such Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 2.20 or 9.02) and (c) except as expressly set forth in the Second Priority Senior Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Borrower or any of the Subsidiaries that is communicated to or obtained by the financial institution serving as such Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 2.20 or 9.02) or in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction by final and non-appealable judgment). No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, as applicable, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Second Priority Senior Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Second Priority Senior Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Second Priority Senior Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Second Priority Senior Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent.
(d) Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each 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. Any 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.
(e) Each Agent may perform any and all of its duties and exercise any and all of its rights and powers by or through any one or more sub-agents appointed by such Agent. Any Agent and any such sub-agent may perform any and all of its duties and exercise any and all of its rights and powers through their Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of any Agent and any such sub-agent, and shall apply to their activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Agent.
(f) Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowerBorrower (it being understood that, if at any time there are two or more institutions acting as Borrowing Base Agents under this Agreement, the resignation of any Borrowing Base Agent shall not be subject to the appointment and acceptance of a successor Borrowing Base Agent). Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Banks, appoint a successor Agent (which shall be a financial institution with an office in New York, New York, or an Affiliate of any such financial institution). Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After an Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent.
(g) Each Lender acknowledges that it has, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Second Priority Senior Loan Document or related agreement or any document furnished hereunder or thereunder.
(h) Each party hereto authorizes the Administrative Agent to enter into customary intercreditor agreements in connection with Qualified Receivables Securitizations and Factoring Transactions and factoring transactions permitted under this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Rite Aid Corp)
Rights of Agents. (a) Each The rights, powers, duties and obligations and actions of the Lenders hereby irrevocably appoints (i) the Administrative each Agent as its agent under this Indenture are several and authorizes the Administrative Agent to take such actions on its behalf not joint or joint and to exercise such powers as are delegated to the Administrative Agent by the terms of the Second Priority Loan Documents, together with such actions and powers as are reasonably incidental thereto, and (ii) the Collateral Agent as its agent and authorizes the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms of the Second Priority Loan Documents, together with such actions and powers as are reasonably incidental theretoseveral.
(b) The financial institutions serving as the Agents hereunder shall have the same rights and powers in its capacity as a Lender as no obligation to act or to take any other Lender and may exercise the same as though it were not an Agent, and such financial institutions and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or any Affiliate of any of the foregoing as action if they were believe they will incur costs, expenses or liabilities for which they will not Agents hereunderbe reimbursed.
(c) The Issuers and the Agents acknowledge and agree that in the event of an Event of Default, the Trustee may, by notice in writing to the Issuers and the Agents, require that the Agents act as agents of, and take instructions exclusively from, the Trustee. Until any Agent has received such written notice from the Trustee, the Agents (other than the Notes Collateral Agent) shall act solely as agents of the Issuers and need have no concern for the interests of the Holders.
(d) The Euro Paying Agent holds all funds as banker subject to the terms of this Indenture and as a result, such money will not be held in accordance with the rules established by the UK Financial Conduct Authority in the UK Financial Conduct Authority’s Handbook of rules and guidance from time to time in relation to client money.
(e) The Agents (other than the Notes Collateral Agent) shall act solely as agents of the Issuers and shall have no fiduciary or other obligation towards, or have any relationship of agency or trust, for or with any person other than the Issuers, except as set forth in Section 7.10(c) and as otherwise expressly stated elsewhere in this Indenture.
(f) No Agent shall have be required to make any duties or obligations except those expressly set forth in the Second Priority Loan Documents. Without limiting the generality payment of the foregoingprincipal, premium or interest payable pursuant to this Indenture unless and until it has received, and been able to identify or confirm receipt of, the full amount to be paid in accordance with the terms of this Indenture. To the extent that an Agent has made such payment with the prior written consent of the Issuers and for which it did not receive the full amount, the Issuers will reimburse the Agent the full amount of any shortfall.
(ag) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent The Agents shall have any duty no obligation to act or to take any discretionary action if they believe they will incur costs, expenses or exercise liabilities for which they will not be reimbursed.
(h) If:
(1) the introduction of or any discretionary powerschange in (or in the interpretation, except discretionary rights administration or application of) any law or regulation made after the date of this Indenture; or
(2) any change in the status of the Issuers or any Guarantor or of the composition of its or their shareholders after the date of this Indenture, obliges any Agent to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Issuers shall as soon as reasonably practicable upon the request of such Agent supply or procure the supply of such documentation and powers expressly contemplated other evidence as is reasonably requested by such Agent in order for such Agent to carry out and be satisfied that it has complied with all necessary “know your customer” or similar checks under all applicable laws and regulations.
(i) The Euro Paying Agent shall not be under any obligation to take any action under this Indenture which it expects will result in any expense or liability accruing to it, the payment of which within a reasonable time is not, in its opinion, assured to it.
(j) The Agents shall be entitled to the benefit of the rights, privileges, immunities and indemnities granted to the Trustee and the Notes Collateral Agent under this Indenture.
(k) All payments by the Second Priority Loan Issuers under the Indenture Documents that will be made free and clear of, and without withholding or deduction for, any taxes, duties, assessments or governmental charges of whatsoever nature imposed, levied, collected, withheld or assessed by any government having power to tax, unless such Agent withholding or deduction is required to exercise by law. In that event, the Issuers will pay such additional amounts as will result in writing receipt by the Required Lenders relevant Agent of such amounts as would have been received by it if no such withholding had been required.
(or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02l) and (c) except as expressly set forth in the Second Priority Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Borrower or any of the Subsidiaries that is communicated to or obtained by the financial institution serving as such Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken failure to carry out or not taken by it with the consent delay in carrying out some or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence all of its own gross negligence obligations under this Indenture where such Agent is rendered unable to carry out such obligations by any cause, event or willful misconduct (circumstance beyond such Agent’s reasonable control, including, without limitation, electricity power-cuts, computer software, hardware or system failure, loss or malfunction of communication services, unavailability or failure of any clearing or payment system, strikes, lock-outs, sit-ins, industrial disturbances, terrorism, revolution, market conditions affecting the execution or settlement of transactions or the value of assets, nationalisation, expropriation, law, order or governmental directions or regulations, including, but not limited to, changes in market rules or practice, currency restrictions, devaluations or fluctuations or any other acts, events or circumstances beyond such Agent’s control or events of force majeure and, for so long as determined by a court of competent jurisdiction by final and non-appealable judgment). No such circumstances continue, such Agent shall be deemed to have knowledge relieved of any Default unless and until written notice thereof is given to such Agent those of its obligations under this Indenture which are affected by the Borrower event in question without liability.
(m) Under no circumstances will any Agent be liable to the Issuers or a Lenderany other Person in contract, as applicabletort (including negligence) or otherwise for any loss of business, and no Agent shall be responsible for goodwill, opportunity or have any duty to ascertain profit, consequential, special, indirect or inquire into (i) any statement, warranty speculative loss or representation made in damage which arises out of or in connection with any Second Priority Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any this Agreement even if advised of the covenants, agreements possibility of such loss or other terms or conditions set forth in any Second Priority Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Second Priority Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Second Priority Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agentdamage.
(dn) Each Agent shall be entitled of the Issuers and the Guarantors hereby represent and warrant to rely uponeach of the Agents that:
(1) it is a company duly organised and in good standing in every jurisdiction where it is required so to be;
(2) it has the power and authority to sign and to perform its obligations under this Indenture;
(3) this Indenture is duly authorised and signed and is its legal, valid and shall not incur binding obligation;
(4) any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document authorisation or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Any 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.
(e) Each Agent may perform any and all of its duties and exercise any and all of its rights and powers by or through any one or more sub-agents appointed by such Agent. Any Agent and any such sub-agent may perform any and all of its duties and exercise any and all of its rights and powers through their Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of any Agent and any such sub-agent, and shall apply to their activities instruction required in connection with the syndication execution and performance of the credit facilities this Indenture has been provided for herein as well as activities as an Agentby any relevant third party;
(5) any act required by any relevant governmental or other authority to be done in connection with its execution and performance of this Indenture has been or will be done (and will be renewed if necessary);
(6) its performance of this Indenture will not violate or breach any applicable law, regulation, contract or other requirement; and
(7) it is authorised and able to execute this Indenture with electronic signatures.
(fo) Subject Each Agent is entitled to take any action or to refuse to take any action, and has no liability for any liability or loss resulting from taking or refusing to take action, which such Agent regards as necessary for it to comply with any applicable law, regulation or requirement (whether or not having the force of law) of any central bank or governmental or other regulatory authority affecting it, or the rules, operating procedures or market practice of any relevant stock exchange or other market or clearing system.
(p) The parties acknowledge that, in connection with this Indenture, the Issuers and Guarantors may disclose to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent (which shall be a financial institution with an office in New York, New York, or an Affiliate of any such financial institution). Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring AgentAgents, and the retiring Agent shall be discharged from its duties Agents may further process, information relating to individuals (“Personal Data”) such as individuals associated with the Issuers and obligations hereunderGuarantors. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After an Agent’s resignation hereunderparties confirm that in so doing they will each comply with any applicable Data Protection Laws and, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was that each is acting as Agent.
(g) Each Lender acknowledges that it has, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Second Priority Loan Document or related agreement or any document furnished hereunder or thereunder.
(h) Each party hereto authorizes the Administrative Agent to enter into customary intercreditor agreements in connection with Qualified Receivables Transactions and factoring transactions permitted under this Agreement.an independent and
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Sources: Indenture (Primo Brands Corp)