Designation. The Company may at any time, and from time to time, upon not less than 15 Business Days’ notice, notify the Agent that the Company intends to designate a Subsidiary as a “Designated Subsidiary” for purposes of this Agreement. On or after the date that is 15 Business Days after such notice, upon delivery to the Agent and each Lender of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially in the form of Exhibit D hereto, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement and, as such, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a), if the designation of such Designated Subsidiary obligates the Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunder.
Appears in 4 contracts
Sources: Credit Agreement (Jabil Inc), Credit Agreement (Jabil Inc), Credit Agreement (Jabil Inc)
Designation. The Company (i) Notwithstanding anything to the contrary contained herein, any Lender (a "Designating Lender") may at any timegrant to one or more special purpose funding vehicles (each, and an "SPV"), identified as such in writing from time to timetime by the Designating Lender to the Administrative Agent and the Borrower, upon the option to provide to the Borrower all or any part of any Loan that such Designating Lender would otherwise be obligated to make to the Borrower pursuant to this Credit Agreement; provided that (I) nothing herein shall constitute a commitment by any SPV to make any Loan, (II) if an SPV elects not less than 15 Business Days’ noticeto exercise such option or otherwise fails to provide all or any part of such Loan, notify the Agent Designating Lender shall be obligated to make such Loan pursuant to the terms hereof, (III) the Designating Lender shall remain liable for any indemnity or other payment obligation with respect to its Commitment hereunder and (IV) each such SPV would satisfy the requirements of Section 3.10 if such SPV was a Lender hereunder. The making of a Loan by an SPV hereunder shall utilize the Commitment of the Designating Lender to the same extent, and as if, such Loan were made by such Designating Lender.
(ii) As to any Loans or portion thereof made by it, each SPV shall have all the rights that a Lender making such Loans or portion thereof would have had under this Credit Agreement; provided, however that each SPV shall have granted to its Designating Lender an irrevocable power of attorney, to deliver and receive all communications and notices under this Credit Agreement (and any related documents) and to exercise on such SPV's behalf, all of such SPV's voting rights under this Credit Agreement. No additional Note shall be required to evidence the Company intends Loans or portion thereof made by an SPV; and the related Designating Lender shall be deemed to designate hold its Note as agent for such SPV to the extent of the Loans or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its Designating Lender as agent for such SPV.
(iii) Each party hereto hereby agrees that no SPV shall be liable for any indemnity or payment under this Credit Agreement for which a Subsidiary as a “Designated Subsidiary” Lender would otherwise be liable for purposes so long as, and to the extent, the Designating Lender provides such indemnity or makes such payment. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Credit Agreement. On or after ) that, prior to the date that is 15 Business Days one year and one day after such noticethe payment in full of all outstanding prior indebtedness of any SPV, upon delivery to the Agent and each Lender of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially it will not institute against, or join any other person in the form of Exhibit D heretoinstituting against, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andSPV any bankruptcy, as suchreorganization, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a)arrangement, if the designation of such Designated Subsidiary obligates the Agent insolvency or any Lender to comply with “know your customer” liquidation proceedings or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized proceedings under the laws of the United States or any State thereof.
(iv) In addition, notwithstanding anything to the contrary contained in this Section 10.3 or otherwise in this Credit Agreement, any Lender maySPV may (I) at any time and without paying any processing fee therefor, with notice assign or participate all or a portion of its interest in any Loans to the Agent and the Company, fulfill its Commitment by causing an Affiliate Designating Lender (or branch to any other SPV of such Lender Designating Lender) or to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company any financial institutions providing liquidity and/or credit support to or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit for the account of and/or do such SPV to support the funding or maintenance of Loans and (II) disclose on a confidential basis any business whatsoever with non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancements to such Designated Subsidiary directly or through an Affiliate SPV. This Section 10.3 may not be amended without the written consent of such any Designating Lender as provided in the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderaffected thereby.
Appears in 4 contracts
Sources: Credit Agreement (Autozone Inc), Credit Agreement (Autozone Inc), 364 Day Credit Agreement (Autozone Inc)
Designation. The Company may at any time, and from time to time, upon not less than 15 Business Days’ noticenotice in the case of any Subsidiary so designated after the Restatement Date, notify the Administrative Agent that the Company intends to designate a Subsidiary as a “Designated Subsidiary” for purposes of this Agreement. On or after the date that is 15 Business Days after such notice, upon delivery to the Administrative Agent and each Lender of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially in the form of Exhibit D hereto, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement and, as such, shall have all of the rights and obligations of a Borrower hereunder. The Administrative Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a9.07(a), if the designation of such Designated Subsidiary obligates the Administrative Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Administrative Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Administrative Agent of the Company’s intent to designate a Subsidiary as a Designated SubsidiaryBorrower, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Subsidiary Subsidiary, either directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in selected pursuant to the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Administrative Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) ), or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunder.
Appears in 4 contracts
Sources: Five Year Credit Agreement (Honeywell International Inc), Five Year Credit Agreement (Honeywell International Inc), Five Year Credit Agreement (Honeywell International Inc)
Designation. The Company Parent may at any time, and from time to time, upon not less than 15 Business Days’ noticenotice in the case of any Subsidiary so designated after the date hereof, notify the Administrative Agent (who shall promptly notify the Lenders) that the Company Parent intends to designate a Subsidiary as a “Designated Subsidiary” for purposes of this Agreement. On or after the date that is 15 Business Days after such notice, upon delivery to the Administrative Agent and each Lender of a Designation Letter duly executed by the Company Parent and the respective Subsidiary and substantially in the form of Exhibit D E hereto, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement and, as such, shall have all of the rights and obligations of a Borrower hereunder. The Administrative Agent shall promptly notify each Lender of the CompanyParent’s notice of such pending designation by the Company Parent and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a16.3(a), if the designation of such Designated Subsidiary obligates the Administrative Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company Parent shall, promptly upon the reasonable request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company Parent shall designate as a Designated Subsidiary hereunder any Subsidiary not organized under the laws of the United States or States, any State thereofthereof or the United Kingdom and Wales, any Lender may, with notice to the Administrative Agent and the CompanyParent, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company Parent or the Administrative Agent of the CompanyParent’s intent to designate a Subsidiary as a Designated SubsidiaryBorrower, and in any event no later than five ten Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Subsidiary Subsidiary, either directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in selected pursuant to the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company Parent and the Administrative Agent in writing. With respect to each Protesting Lender, the Company Parent shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligationsAdvances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company Parent or the relevant Designated Subsidiary (in the case of all other amounts) ), or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunder.
Appears in 4 contracts
Sources: Credit Agreement (Aon PLC), Five Year Credit Agreement (Aon PLC), Five Year Credit Agreement (Aon PLC)
Designation. The Company may at any time, and from time to time, upon not less than 15 Business Days’ notice, notify the Agent that the Company intends to designate a Subsidiary as a “Designated Subsidiary” for purposes of this Agreement. On or after the date that is 15 Business Days after such notice, upon delivery to the Agent and each Lender of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially in the form of Exhibit D E hereto, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement and, as such, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a9.08(a), if the designation of such Designated Subsidiary obligates the Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized under the laws of a jurisdiction outside of the United States or any State thereofStates, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender organized in the same jurisdiction as such Designated Subsidiary or another foreign jurisdiction agreed to by such Lender and the Company, to act as the Lender in respect of such Designated Subsidiary, and such Lender shall, to the extent of Advances made to such Designated Subsidiary, be deemed for all purposes hereof to have satisfied its Commitment hereunder in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than outside of the United States or a political subdivision thereofStates, any Lender that either (i) may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligationsAdvances, accrued interest thereon, accrued fees and all other amounts payable to it hereunderhereunder including any amounts due under Section 9.04(d), from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) ), or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunder.
Appears in 3 contracts
Sources: Credit Agreement (Hershey Co), Credit Agreement (Hershey Co), Five Year Credit Agreement (Hershey Co)
Designation. The Company may at any time, and from time to time, upon not less than 15 10 Business Days’ notice, notify the Agent that the Company intends to designate a Subsidiary as a “Designated Subsidiary” for purposes of this Agreement. On or after the date that is 15 10 Business Days after such notice, upon delivery to the Agent and each Lender of a Designation Letter Agreement duly executed by the Company and the respective Subsidiary and substantially in the form of Exhibit D hereto, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement and, as such, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a), if the designation of such Designated Subsidiary obligates the Agent or any Lender to comply with “know your customer” or similar identification procedures (including without limitation the Beneficial Ownership Regulation) in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary Borrower hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender organized in the same jurisdiction as such Designated Subsidiary or another foreign jurisdiction agreed to by such Lender and the Company, to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminatedterminated or assigned to a Lender or an Eligible Assignee that is not a Protesting Lender; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligationsAdvances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) ), or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunder.
Appears in 3 contracts
Sources: Credit Agreement (Corning Inc /Ny), Credit Agreement (Corning Inc /Ny), Credit Agreement (Corning Inc /Ny)
Designation. The Company (a) Notwithstanding anything to the contrary contained herein, any Lender (a “Designating Lender”) may at any timegrant to one or more special purpose funding vehicles (each, and an “SPV”), identified as such in writing from time to timetime by the Designating Lender to the Administrative Agent and the Borrowers, upon the option to provide to the Borrowers all or any part of any Loan that such Designating Lender would otherwise be obligated to make to the Borrowers pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPV to make any Loan, (ii) if an SPV elects not less than 15 Business Days’ noticeto exercise such option or otherwise fails to provide all or any part of such Loan, notify the Agent Designating Lender shall be obligated to make such Loan pursuant to the terms hereof and (iii) the Designating Lender shall remain liable for any indemnity or other payment obligation with respect to its Commitment hereunder. The making of a Loan by an SPV hereunder shall utilize the Commitment of the Designating Lender to the same extent, and as if, such Loan were made by such Designating Lender.
(b) As to any Loans or portion thereof made by it, each SPV shall have all the rights that a Lender making such Loans or portion thereof would have had under this Agreement; provided, however, that each SPV shall have granted to its Designating Lender an irrevocable power of attorney, to deliver and receive all communications and notices under this Agreement (and any Loan Documents) and to exercise on such SPV’s behalf, all of such SPV’s voting rights under this Agreement. In the Company intends event that any Notes have been issued to designate the Designated Lender hereunder, no additional Notes shall be required to evidence the Loans or portion thereof made by an SPV; and the related Designating Lender shall be deemed to hold its Notes as agent for such SPV to the extent of the Loans or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its Designating Lender as agent for such SPV.
(c) Each party hereto hereby agrees that no SPV shall be liable for any indemnity or payment under this Agreement for which a Subsidiary as a “Designated Subsidiary” for purposes Lender would otherwise be liable. In furtherance of the foregoing, each party hereto hereby agrees (which agreements shall survive the termination of this Agreement. On or after ) that, prior to the date that is 15 Business Days one year and one day after such noticethe payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, upon delivery to the Agent and each Lender of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially it will not institute against, or join any other person in the form of Exhibit D heretoinstituting against, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andSPV any bankruptcy, as suchreorganization, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a)arrangement, if the designation of such Designated Subsidiary obligates the Agent insolvency or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceedings under the laws of the United States or any State thereof.
(d) In addition, notwithstanding anything to the contrary contained in this Section 12.6 or otherwise in this Agreement, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either SPV may (i) may at any time and without paying any processing fee therefor, assign or participate all or a portion of its interest in any Loans to the Designating Lender or, with the prior consent of the Borrowers and the Agent (provided, that if a Default has occurred and is continuing, the consent of the Borrowers shall not legally lend to, establish be required) to any financial institutions providing liquidity and/or credit support to or for the account of and/or do any business whatsoever with such Designated Subsidiary directly SPV to support the funding or through an Affiliate maintenance of such Lender as provided in the immediately preceding paragraph or Loans and (ii) has internal policies in place that prohibit it from lending todisclose on a confidential basis any non-public information relating to its Loan to any rating agency, establishing commercial paper dealer or provider of any surety, guarantee or credit for the account of and/or doing any business whatsoever with or liquidity enhancements to such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting LenderSPV, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal Persons agree to keep such information confidential to the outstanding principal same extent required by the Lenders hereunder. This Section 12.6 may not be amended without the written consent of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderany Designating Lender affected thereby.
Appears in 3 contracts
Sources: 364 Day Credit Agreement (Nationwide Financial Services Inc/), Credit Agreement (Nationwide Financial Services Inc/), 364 Day Credit Agreement (Nationwide Financial Services Inc/)
Designation. The Company may at With respect to each repayment of any timeTranche of Loans required by this Section 5.02, and from time to time, upon not less than 15 Business Days’ notice, notify the Agent that the Company intends to designate a Subsidiary as a “Designated Subsidiary” for purposes of this Agreement. On or after the date that is 15 Business Days after such notice, upon delivery to the Agent and each Lender of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially Borrower may designate the Types of Loans which are to be repaid of such Tranche and, in the form case of Exhibit D heretoEuro Rate Loans (other than Euro Denominated Swingline Loans) or CDOR Rate Loans, the specific Borrowing or Borrowings pursuant to which such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes Euro Rate Loans or CDOR Rate Loans were made, provided that: (i) repayments of this Agreement and, as such, shall have all of the rights Euro Rate Loans (other than Euro Denominated Swingline Loans) and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice CDOR Rate Loans made pursuant to this Section 9.09(a), if 5.02 may only be made on the designation last day of an Interest Period applicable thereto unless all such Designated Subsidiary obligates the Agent Euro Rate Loans or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request CDOR Rate Loans of the Agent respective Tranche with Interest Periods ending on such date of required repayment and all Base Rate Loans or any Lender, supply such documentation and other evidence Canadian Prime Rate Loans (as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized under the laws applicable) of the United States or any State thereof, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender respective Tranche have been paid in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or full; (ii) has internal policies in place that prohibit it from lending to, establishing credit for if any repayment of Euro Rate Loans (other than Euro Denominated Swingline Loans) or CDOR Rate Loans made pursuant to a single Borrowing shall reduce the account of and/or doing any business whatsoever with outstanding Loans made pursuant to such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect Borrowing to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to less than the outstanding principal of its Advances and/or Letter of Credit reimbursement obligationsMinimum Borrowing Amount applicable thereto, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and feesx) or the Company or the relevant Designated Subsidiary (in the case of all Eurodollar Loans, such Borrowing shall be converted at the end of the then current Interest Period into a Borrowing of Base Rate Loans, (y) in the case of CDOR Rate Loans, such Borrowing shall be converted at the end of the then current Interest Period into a Borrowing of Canadian Prime Rate Loans, and (z) in the case of Alternate Currency Loans of a given Tranche (other amountsthan Canadian Loans), the respective Borrower shall cooperate with the Administrative Agent in selecting Interest Periods at the end of the then current Interest Period or Interest Periods so as to align such Borrowing with the Interest Periods applicable to one or more other Borrowings of Alternate Currency Loans of such Tranche; and (iii) or (B) cancel each repayment of any Tranche of Loans shall be applied pro rata among the Lenders with outstanding Loans of such Tranche. In the absence of a designation by the respective Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its request to designate such Subsidiary as a “Designated Subsidiary” hereundersole discretion.
Appears in 3 contracts
Sources: Credit Agreement (Silgan Holdings Inc), Credit Agreement (Silgan Holdings Inc), Credit Agreement (Silgan Holdings Inc)
Designation. The Company may at any time, and from time to time, upon not less than 15 five Business Days’ noticenotice (or ten Business Days’ notice in the case of any Subsidiary organized under laws of a jurisdiction outside of the United States), notify the Agent that the Company intends to designate a Subsidiary as a “Designated Subsidiary” for purposes of this Agreement. On or after the date that is 15 five Business Days after such noticenotice (or ten Business Days after such notice in the case of any Subsidiary organized under laws of a jurisdiction outside of the United States), upon delivery to the Agent and each Lender of a Designation Letter Agreement duly executed by the Company and the respective Subsidiary and substantially in the form of Exhibit D heretoSubsidiary, such Subsidiary shall thereupon become a “Designated Subsidiary” for all purposes of this Agreement, and, upon fulfillment of the applicable conditions set forth in Section 3.02 and after such Designation Agreement is accepted by the Agent, such Subsidiary shall thereupon become a Designated Subsidiary for all purposes of this Agreement and, as such, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a9.08(a), if the designation of such Designated Subsidiary obligates the Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation (including, without limitation, delivery of a Beneficial Ownership Certification, if applicable) and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results requirements of all necessary “know your customer” or other similar checks under all applicable laws and regulationsregulations (including, without limitation, the Beneficial Ownership Regulation). If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligationsAdvances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from (if such Protesting Lender’s Commitments are assigned) the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case an assignment, of all other amounts or, if such Commitments are terminated, of such outstanding principal and accrued interest, fees and other amounts) ), or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunder.
Appears in 3 contracts
Sources: Credit Agreement (At&t Inc.), Credit Agreement (At&t Inc.), Credit Agreement (At&t Inc.)
Designation. The Company may at any time, and from time to time, upon not less than 15 Business Days’ notice, notify the Agent that the Company intends to designate a Subsidiary as a “Designated Subsidiary” for purposes of this Agreement. On or after the date that is 15 Business Days after such notice, upon delivery to the Agent and each Lender of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially in the form of Exhibit D E hereto, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement and, as such, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a9.08(a), if the designation of such Designated Subsidiary obligates the Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. In the case of a Designated Subsidiary that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a duly executed and completed Beneficial Ownership Certification shall be delivered to each Lender that so requests. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized under the laws of a jurisdiction outside of the United States or any State thereofStates, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender organized in the same jurisdiction as such Designated Subsidiary or another foreign jurisdiction agreed to by such Lender and the Company, to act as the Lender in respect of such Designated Subsidiary, and such Lender shall, to the extent of Advances made to such Designated Subsidiary, be deemed for all purposes hereof to have satisfied its Commitment hereunder in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than outside of the United States or a political subdivision thereofStates, any Lender that either (i) may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligationsAdvances, accrued interest thereon, accrued fees and all other amounts payable to it hereunderhereunder including any amounts due under Section 9.04(d), from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) ), or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunder.
Appears in 3 contracts
Sources: Five Year Credit Agreement (Hershey Co), Five Year Credit Agreement (Hershey Co), Five Year Credit Agreement (Hershey Co)
Designation. The Company Parent may at any time, and from time to time, upon not less than 15 Business Days’ noticenotice in the case of any Subsidiary so designated after the Effective Date, notify the Administrative Agent (who shall promptly notify the Lenders) that the Company Parent intends to designate a Subsidiary as a “Designated Subsidiary” for purposes of this Agreement. On or after the date that is 15 Business Days after such notice, upon delivery to the Administrative Agent and each Lender of a Designation Letter duly executed by the Company Parent and the respective Subsidiary and substantially in the form of Exhibit D E hereto, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement and, as such, shall have all of the rights and obligations of a Borrower hereunder. The Administrative Agent shall promptly notify each Lender of the CompanyParent’s notice of such pending designation by the Company Parent and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a16.3(a), if the designation of such Designated Subsidiary obligates the Administrative Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company Parent shall, promptly upon the reasonable request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company Parent shall designate as a Designated Subsidiary hereunder any Subsidiary not organized under the laws of the United States or States, any State thereofthereof or the United Kingdom and Wales, any Lender may, with notice to the Administrative Agent and the CompanyParent, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company Parent or the Administrative Agent of the CompanyParent’s intent to designate a Subsidiary as a Designated SubsidiaryBorrower, and in any event no later than five ten Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Subsidiary Subsidiary, either directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in selected pursuant to the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company Parent and the Administrative Agent in writing. With respect to each Protesting Lender, the Company Parent shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligationsAdvances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company Parent or the relevant Designated Subsidiary (in the case of all other amounts) ), or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunder.
Appears in 3 contracts
Sources: Credit Agreement (Aon PLC), Five Year Credit Agreement (Aon PLC), Credit Agreement (Aon PLC)
Designation. The Company may at any time, and from time to time, upon not less than 15 Business Days’ noticenotice in the case of any Subsidiary so designated after the Effective Date, notify the Administrative Agent that the Company intends to designate a Subsidiary as a “Designated SubsidiarySubsidiary Borrower” for purposes of this Agreement. On or after the date that is 15 Business Days after such notice, upon delivery to the Administrative Agent and each Lender of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially in the form of Exhibit D H hereto, such Subsidiary shall thereupon become a “Designated SubsidiarySubsidiary Borrower” for purposes of this Agreement and, as such, shall have all of the rights and obligations of a Borrower hereunder. The Administrative Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a12.6(a), if the designation of such Designated Subsidiary Borrower obligates the Administrative Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Administrative Agent of the Company’s intent to designate a Subsidiary as a Designated SubsidiarySubsidiary Borrower, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary Borrower that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary Borrower directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Administrative Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary Borrower shall have the right to borrow hereunder, either (A) notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances Loans and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary Borrower (in the case of all other amounts) ), or (B) cancel its request to designate such Subsidiary as a “Designated SubsidiarySubsidiary Borrower” hereunder.
Appears in 3 contracts
Sources: Multicurrency Revolving Credit Agreement (American Tower Corp /Ma/), Multicurrency Revolving Credit Agreement (American Tower Corp /Ma/), Multicurrency Revolving Credit Agreement (American Tower Corp /Ma/)
Designation. The Company (i) Notwithstanding anything to the contrary contained herein, any Lender (a “Designating Lender”) may at any timegrant to one or more special purpose funding vehicles (each, and an “SPV”), identified as such in writing from time to time, upon not less than 15 Business Days’ notice, notify time by the Designating Lender to the Agent and the Company, the option to provide to the Borrowers all or any part of any Advance that such Designating Lender would otherwise be obligated to make to the Borrowers pursuant to this Agreement; provided that (A) nothing herein shall constitute a commitment by any SPV to make any Advance, (B) if an SPV fails to provide all or any part of such Advance, the Designating Lender shall be obligated to make such Advance pursuant to the terms hereof and (C) the Designating Lender shall, at all times, remain liable for any indemnity or other payment obligation with respect to its Commitment hereunder. The making of a Advance by an SPV hereunder shall utilize the applicable Commitment of the Designating Lender to the same extent, and as if such Advance were made by such Designating Lender.
(ii) As to any Advances or portion thereof made by it, each SPV shall have all the rights that the Company intends Designating Lender making such Advances or portion thereof would have had under this Agreement; provided, however, that each SPV shall have granted to designate its Designating Lender an irrevocable power of attorney, to deliver and receive all communications and notices under this Agreement and to exercise on such SPV’s behalf, all of such SPV’s voting rights under this Agreement. No additional Notes shall be required to evidence the Advances or portion thereof made by an SPV; and the related Designating Lender shall be deemed to hold its Note, if any, as agent for such SPV to the extent of the Advances or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its Designating Lender as agent for such SPV.
(iii) Each party hereto hereby agrees that no SPV shall be liable for any indemnity or payment under this Agreement for which a Subsidiary as a “Designated Subsidiary” for purposes Lender would otherwise be liable. In furtherance of the foregoing, each party hereto hereby agrees (which agreements shall survive the termination of this Agreement. On or after ) that, prior to the date that is 15 Business Days one year and one day after such noticethe payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, upon delivery to the Agent and each Lender of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially it will not institute against, or join any other person in the form of Exhibit D heretoinstituting against, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andSPV any bankruptcy, as suchreorganization, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a)arrangement, if the designation of such Designated Subsidiary obligates the Agent insolvency or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceedings under the laws of the United States or any State thereof.
(iv) In addition, notwithstanding anything to the contrary contained in this Section 9.07(h) or otherwise in this Agreement, any Lender maySPV may (A) at any time and without paying any processing fee therefor, with notice assign or sell a participation in all or a portion of its interest in any Advances to the Agent and the Company, fulfill its Commitment by causing an Affiliate Designating Lender or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company any financial institutions providing liquidity and/or credit support to or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Subsidiary directly SPV to support the funding or through an Affiliate maintenance of such Lender as provided in the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company Advances and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel disclose on a confidential basis any non-public information relating to its request Advances to designate any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancements to such Subsidiary as a “Designated Subsidiary” hereunderSPV. This Section 9.07(h) may not be amended without the written consent of any Designating Lender affected thereby.
Appears in 3 contracts
Sources: Credit Agreement (Lubrizol Corp), Credit Agreement (Lubrizol Corp), Credit Agreement (Lubrizol Corp)
Designation. The Company (a) Notwithstanding anything in this Agreement to the contrary, any Bank (a "Designating Bank") may at any timegrant to one or more special purpose funding vehicles (each an "SPV"), and identified in writing from time to timetime by such Designating Bank to Agent and Borrower, upon not less than 15 Business Days’ notice, notify the Agent option to provide to Borrower all or any part of any Loan that the Company intends such Designating Bank would otherwise be obligated to designate a Subsidiary as a “Designated Subsidiary” for purposes of make to Borrower pursuant to this Agreement. On ; provided that (i) nothing in this Section shall constitute a commitment by any SPV to make any Loan, and (ii) if an SPV designated by a Designating Bank to make Loans elects not to exercise such option or after the date that is 15 Business Days after otherwise fails to provide all or any part of such noticeLoan, upon delivery such Designating Bank shall still be obligated to make such Loan pursuant to the Agent and each Lender terms hereof. The making of a Designation Letter duly executed Loan by an SPV hereunder shall reduce the Company availability under the Revolving Credit Commitment of the Designating Bank to the same extent, and the respective Subsidiary and substantially in the form of Exhibit D heretoas if, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andLoan were made by such Designating Bank.
(b) As to any Loans or portion thereof made by an SPV, as such, each such SPV shall have all of the rights that a Bank making such Loans or portion thereof would have under this Agreement; provided, however, that each SPV shall have granted its Designating Bank an irrevocable power of attorney to deliver and obligations receive all communications and notices under this Agreement and any other Loan Document and to exercise, in its reasonable discretion, on behalf of a Borrower hereundersuch SPV, all of such SPV's voting rights under this Agreement. The Agent No additional Note shall promptly notify each Lender be required to evidence the Loans or portion thereof made by an SPV and the Designating Bank shall be deemed to hold its Note as agent for such SPV to the extent of the Company’s notice of Loans or portion thereof funded by such pending designation by the Company and the identity of the respective SubsidiarySPV. Following the giving of any notice pursuant to this Section 9.09(a), if the designation of such Designated Subsidiary obligates the Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized under the laws of the United States or any State thereofIn addition, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit payments for the account of and/or do any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender SPV shall be terminated; provided that paid to its respective Designating Bank as agent for such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderSPV.
Appears in 2 contracts
Sources: Credit Agreement (Davey Tree Expert Co), Credit Agreement (Steris Corp)
Designation. The Company (i) Notwithstanding anything to the contrary contained herein, any Lender (a “Designating Lender”) may at any timegrant to one or more special purpose funding vehicles (each, and an “SPV”), identified as such in writing from time to time, upon not less than 15 Business Days’ notice, notify time by the Designated Lender to the Agent and the Borrowers, the option to provide to the Borrowers all or any part of any Loan that such Designating Lender would otherwise be obligated to make to the Company intends Borrowers pursuant to designate this Agreement; provided that (i) nothing herein shall constitute a Subsidiary commitment by any SPV to make any Loan, (ii) if an SPV elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Designating Lender shall be obligated to make such Loan pursuant to the terms hereof and (iii) the Designating Lender shall remain liable for any indemnity or other payment obligation with respect to its Commitment hereunder. The making of a Loan by an SPV hereunder shall utilize the Commitment of the Designating Lender to the same extent, and as if, such Loan were made by such Designating Lender.
(ii) Subject to the terms of this Section 10.14(d), as to any Loans or portion thereof made by it, each SPV shall have all the rights that a “Designated Subsidiary” Lender making such Loans or portion thereof would have had under this Agreement; provided, however, that each SPV shall have granted to its Designating Lender an irrevocable power of attorney, to deliver and receive all communications and notices under this Agreement (and any Loan Documents) and to exercise, exclusively in the place and stead of such SPV, all of such SPV’s voting rights under this Agreement in the discretion of such Designation Lender, until the occurrence and continuation of an Event of Default. No additional Note shall be required to evidence the Loans or portion thereof made by an SPV; and the related Designating Lender shall be deemed to hold its Note as agent for purposes such SPV to the extent of the Loans or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its Designating Lender as agent for such SPV.
(iii) Each party hereto hereby agrees that no SPV shall be liable for any indemnity or payment under this Agreement for which a Lender would otherwise be liable. In furtherance of the foregoing, each party hereto hereby agrees (which agreements shall survive the termination of this Agreement. On or after ) that, prior to the date that is 15 Business Days one year and one day after such noticethe later of (a) payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, upon delivery to (b) the Agent payment in full of all Loans and each Lender Letter of a Designation Letter duly executed by Credit Reimbursement Obligations, and (c) the Company termination of all Commitments and the respective Subsidiary and substantially expiration or termination of all Letters of Credit, it will not institute against, or join any other person in the form of Exhibit D heretoinstituting against, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andSPV any bankruptcy, as suchreorganization, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a)arrangement, if the designation of such Designated Subsidiary obligates the Agent insolvency or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceedings under the laws of the United States or any State thereof.
(iv) In addition, notwithstanding anything to the contrary contained in this Section 10.14(d) or otherwise in this Agreement (other than the proviso set forth directly below in the Section 10.14(d)(iv), any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either SPV may (i) may not legally lend toat any time and without paying any processing fee therefor, establish assign or participate all or a portion of its interest in any Loans to the Designating Lender or to any financial institutions providing liquidity and/or credit support to or for the account of and/or do any business whatsoever with such Designated Subsidiary directly SPV to support the funding or through an Affiliate maintenance of such Lender as provided in the immediately preceding paragraph or Loans and (ii) has internal policies in place disclose on a confidential basis to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancements to such SPV information relating to its Loans that prohibit it from lending to, establishing credit for pertains to Borrowers’ performance under the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees Loan Documents and all other amounts payable information relating to it hereunderits Loans provided by Borrowers pursuant to Section 6.01, from other than that described in Section 6.01(f) and other than non-public information provided pursuant to Section 6.01(g). In no event shall the assignee (Borrowers be obligated to pay to any SPV that has made a Loan any greater amount than the extent Borrowers would have been obligated to pay under this Agreement if the Designating Lender had made such Loan. This Section 10.14(d) may not be amended without the written consent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderany Designating Lender affected thereby.
Appears in 2 contracts
Sources: Credit Agreement (Black Box Corp), Credit Agreement (Norstan Inc)
Designation. The Company (i) Notwithstanding anything to the contrary contained herein (but subject to Sections 2.18 and 2.19), any Lender (a “Designating Lender”) may at any timegrant to one or more special purpose funding vehicles (each, and an “SPV”), identified as such in writing from time to time, upon not less than 15 Business Days’ notice, notify time by the Designating Lender to the Agent and the Borrowers, the option to provide to the Borrowers all or any part of any Advance that such Designating Lender would otherwise be obligated to make to the Borrowers pursuant to this Agreement; provided that (A) nothing herein shall constitute a commitment by any SPV to make any Advance, (B) if an SPV fails to provide all or any part of such Advance, the Designating Lender shall be obligated to make such Advance pursuant to the terms hereof and (C) the Designating Lender shall, at all times, remain liable for any indemnity or other payment obligation with respect to its Commitment hereunder. The making of a Advance by an SPV hereunder shall utilize the applicable Commitment of the Designating Lender to the same extent, and as if such Advance were made by such Designating Lender.
(ii) As to any Advances or portion thereof made by it, each SPV shall have all the rights that the Company intends Designating Lender making such Advances or portion thereof would have had under this Agreement; provided, however, that each SPV shall have granted to designate its Designating Lender an irrevocable power of attorney, to deliver and receive all communications and notices under this Agreement and to exercise on such SPV’s behalf, all of such SPV’s voting rights under this Agreement. No additional Notes shall be required to evidence the Advances or portion thereof made by an SPV; and the related Designating Lender shall be deemed to hold its Note, if any, as agent for such SPV to the extent of the Advances or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its Designating Lender as agent for such SPV.
(iii) Each party hereto hereby agrees that no SPV shall be liable for any indemnity or payment under this Agreement for which a Subsidiary as a “Designated Subsidiary” for purposes Lender would otherwise be liable. In furtherance of the foregoing, each party hereto hereby agrees (which agreements shall survive the termination of this Agreement. On or after ) that, prior to the date that is 15 Business Days one year and one day after such noticethe payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, upon delivery to the Agent and each Lender of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially it will not institute against, or join any other person in the form of Exhibit D heretoinstituting against, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andSPV any bankruptcy, as suchreorganization, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a)arrangement, if the designation of such Designated Subsidiary obligates the Agent insolvency or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceedings under the laws of the United States or any State thereof.
(iv) In addition, notwithstanding anything to the contrary contained in this Section 9.07(h) or otherwise in this Agreement, any Lender maySPV may (A) at any time and without paying any processing fee therefor, with notice assign or sell a participation in all or a portion of its interest in any Advances to the Agent and the Company, fulfill its Commitment by causing an Affiliate Designating Lender or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company any financial institutions providing liquidity and/or credit support to or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Subsidiary directly SPV to support the funding or through an Affiliate maintenance of such Lender as provided in the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company Advances and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel disclose on a confidential basis any non-public information relating to its request Advances to designate any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancements to such Subsidiary as a “Designated Subsidiary” hereunderSPV. This Section 9.07(h) may not be amended without the written consent of any Designating Lender affected thereby.
Appears in 2 contracts
Sources: Credit Agreement (Lubrizol Corp), Credit Agreement (Lubrizol Corp)
Designation. The Company (i) Notwithstanding anything to the contrary contained herein, any Lender (a "Designating Lender") may at any timegrant to one or more special purpose funding vehicles (each, and an "SPV"), identified as such in writing from time to timetime by the Designated Lender to the Administrative Agent and the Borrower, upon the option to provide to the Borrower all or any part of any Revolving Credit Loan that such Designating Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (x) nothing herein shall constitute a commitment by any SPV to make any Revolving Credit Loan, (y) if an SPV elects not less than 15 Business Days’ noticeto exercise such option or otherwise fails to provide all or any part of such Revolving Credit Loan, notify the Designating Lender shall be obligated to make such Revolving Credit Loan pursuant to the terms hereof and (z) the Designating Lender shall remain liable for any indemnity or other payment obligation with respect to its Commitment hereunder. The making of a Revolving Credit Loan by an SPV hereunder shall utilize the Commitment of the Designating Lender to the same extent, and as if, such Revolving Credit Loan were made by such Designating Lender.
(ii) As to any Revolving Credit Loans or portion thereof made by it, each SPV shall have all the rights that a Lender making such Revolving Credit Loans or portion thereof would have had under this Agreement; provided, however, that each SPV shall have granted to its Designating Lender an irrevocable power of attorney, to deliver and receive all communications and notices under this Agreement (and any Loan Documents) and to exercise, on such SPV's behalf, all of such SPV's voting rights under this Agreement. No additional Note shall be required to evidence the Revolving Credit Loans or portion thereof made by an SPV; and the related Designating Lender shall be deemed to hold its Note as agent for such SPV to the extent of the Revolving Credit Loans or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its Designating Lender as agent for such SPV. Notwithstanding any term or condition hereof, no SPV, unless it shall have become a Lender hereunder in accordance with the terms of Section 10.11.2(a), shall be a party hereto or have any right to vote or give or withhold its consent under this Agreement. The Administrative Agent shall have no duty or obligation to give any notices required to be delivered hereunder to any SPV.
(iii) Each party hereto hereby agrees that no SPV shall be liable for any indemnity or payment under this Agreement for which a Lender would otherwise be liable. In furtherance of the Company intends to designate a Subsidiary as a “Designated Subsidiary” for purposes foregoing, each party hereto hereby agrees (which agreements shall survive the termination of this Agreement. On or after ) that, prior to the date that is 15 Business Days one year and one day after such noticethe later of (x) payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, upon delivery to (y) the Agent payment in full of all Revolving Credit Loans, and each Lender (z) the termination of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially all Commitments, it will not institute against, or join any other person in the form of Exhibit D heretoinstituting against, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andSPV any bankruptcy, as suchreorganization, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a)arrangement, if the designation of such Designated Subsidiary obligates the Agent insolvency or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceedings under the laws of the United States or any State thereof, provided that the Designating Lender for each SPV hereby agrees to indemnify, save and hold harmless each other party hereto for any Lender mayloss, cost, damage and expense arising out of the inability to institute any such proceeding against such SPV.
(iv) In addition, notwithstanding anything to the contrary contained in this Section 10.11.2(b) or otherwise in this Agreement (other than the proviso set forth directly below in this Section 10.11.2(b), any SPV may (y) with notice to, but without the prior written consent of the Borrower or the Administrative Agent, at any time and without paying any processing fee therefor, assign or participate all or a portion of its interest in any Revolving Credit Loans to the Agent and the Company, fulfill its Commitment by causing an Affiliate Designating Lender or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company any financial institutions providing liquidity and/or credit support to or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit for the account of and/or do such SPV to support the funding or maintenance of Revolving Credit Loans and (z) disclose on a confidential basis any business whatsoever with non public information relating to its Revolving Credit Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancements to such Designated Subsidiary directly or through an Affiliate SPV; provided, however, that in no event may any non-public financial information provided by the Borrower under Section 7.3 [Reporting Requirements] be provided by any SPV to any other Person. In no event shall the Borrower be obligated to pay to any SPV that has made a Revolving Credit Loan any greater amount than the Borrower would have been obligated to pay under this Agreement if the Designating Lender had made such Revolving Credit Loan. This Section 10.11.2(b) may not be amended without the written consent of such any Designating Lender as provided in the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderaffected thereby.
Appears in 2 contracts
Sources: Revolving Credit Facility (Arch Coal Inc), Revolving Credit Facility (Arch Coal Inc)
Designation. The Company PPG may at any time, time and from time to time, and, if after the Effective Date, upon not less than 15 Business Days’ prior notice, notify by delivery to the Administrative Agent that and each Lender of a Designation Letter, duly executed by PPG and a Wholly-owned Restricted Subsidiary and in substantially the Company intends to form of Exhibit D hereto, designate a such Subsidiary as a “Designated Subsidiary” for all purposes of this Agreement. On or after , and, upon fulfillment of the date that is 15 Business Days applicable conditions set forth in Article III and after such notice, upon delivery to the Agent and each Lender of a Designation Letter duly executed is accepted by the Company and the respective Subsidiary and substantially in the form of Exhibit D heretoAdministrative Agent, such Subsidiary shall thereupon become a “Designated Subsidiary” Subsidiary for all purposes of this Agreement and, as such, shall have all of the rights and obligations of a Borrower hereunder. The Administrative Agent shall promptly notify each Lender of the Company’s notice of each such pending designation by the Company PPG and the identity of the respective each such Designated Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a9.14(a), if the designation of such Designated Subsidiary obligates the Administrative Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company PPG shall, promptly upon the reasonable request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company PPG shall designate as a Designated Subsidiary hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, at its option, with notice to the Administrative Agent and the CompanyPPG, fulfill its Commitment make any Advance available to such Designated Subsidiary by causing an any foreign or domestic branch or Affiliate or branch of such Lender to act as make such Advance; provided that any exercise of such option shall not affect the Lender in respect obligation of such Designated SubsidiarySubsidiary to repay such Advance in accordance with the terms of this Agreement. As soon as practicable after receiving notice from the Company PPG or the Administrative Agent of the CompanyPPG’s intent to designate a Subsidiary as a Designated Subsidiary, Subsidiary and in any event no later than five at least 10 Business Days after prior to the delivery of such noticean executed Designation Letter to the Administrative Agent pursuant to this Section 9.14(a), for a Designated Subsidiary (other than a Pre-Approved Designated Subsidiary) that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally legally, or will be subject to increased costs, including taxes, if required to, lend to, establish credit for the account of and/or do any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending topreclude any such lending, establishing credit for the account of and/or doing any business whatsoever with respect to such Designated Subsidiary directly or through an Affiliate because of such Lender as provided in the immediately preceding paragraph its jurisdiction of organization (a “Protesting Lender”) shall so notify the Company PPG and the Administrative Agent in writing. With respect to each Protesting Lender, the Company PPG shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (Ai) notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company PPG or the relevant Designated Subsidiary (in the case of all other amounts) ), or (Bii) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunder.
Appears in 2 contracts
Sources: Amendment to Credit Agreement (PPG Industries Inc), Five Year Credit Agreement (PPG Industries Inc)
Designation. The Company may at any time, [ ] hereby designates (x) itself as a [Cash Management Bank/Hedge Bank] under the Credit Agreement and from time (y) the [Cash Management Agreement/Swap Contract] described on Schedule 1 hereto to time, upon not less than 15 Business Days’ notice, notify be a “[Secured Cash Management Agreement/Secured Hedge Agreement]” and hereby represents and warrants to the Administrative Agent that such [Cash Management Agreement/Swap Contract] satisfies all the Company intends requirements under the Loan Documents to designate be so designated including that such [Cash Management Bank/Hedge Bank] was a Subsidiary as a “Designated Subsidiary” for purposes of this Agreement. On Lender or after the date that is 15 Business Days after such notice, upon delivery to the Agent and each Lender Affiliate of a Lender at the time such [Cash Management Agreement/Swap Contract] was entered into. By executing and delivering this Designation Letter duly executed by the Company and the respective Subsidiary and substantially in the form of Exhibit D hereto, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement and, as such, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a), if the designation of such Designated Subsidiary obligates the Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to itNotice, the Company shall[Cash Management Bank/Hedge Bank], promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph Credit Agreement, hereby agrees to be bound by all of the provisions of the Loan Documents which are applicable to it as a [Cash Management Bank/Hedge Bank] or a Secured Party thereunder and hereby (a) confirms that it has received a copy of the Loan Documents and such other documents and information as it has deemed appropriate to make its own decision to enter into this Designation Notice, (b) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Credit Agreement, the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto as are delegated to the Administrative Agent by the terms thereof, together with such powers as are incidental thereto, and (c) agrees that it will be bound by the provisions of the Loan Documents and will perform in accordance with its terms all the obligations which by the terms of the Loan Documents are required to be performed by it as a [Cash Management Bank/Hedge Bank] or Secured Party (as defined in the Security Agreement). Notwithstanding anything to the contrary contained in Section 11.04 of the Credit Agreement, to the extent (w) there are any amounts owed to the [Cash Management Bank/Hedge Bank] in respect of Secured Hedge Agreements or Cash Management Agreements, (x) the Loan Parties for any reason fail to indefeasibly pay any amount required under subsection (a) or (b) of Section 11.04 of the Credit Agreement to be paid by them to the Administrative Agent, (y) the Administrative Agent has taken action with respect of the Collateral or any breach of the Loan Documents by a Loan Party, and (z) the [Cash Management Bank/Hedge Bank] shares in the proceeds of such Collateral, the [Cash Management Bank/Hedge Bank] agrees to indemnify the Administrative Agent with respect to any action taken by it in respect of (i) the Collateral or (ii) has internal policies any breach of the Loan Documents by any Loan Party, and agrees to undertake and fulfill a portion of the liability of the Lenders under Section 11.04 of the Credit Agreement (without relieving the Lenders of their obligations) in place that prohibit it from lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to, as of any date of determination, the product of (a) the aggregate liability of the Lenders under Section 11.04 as of such date multiplied by (b) a fraction, the numerator of which shall be the aggregate amount owed to the outstanding principal [Cash Management Bank/Hedge Bank] in respect of its Advances and/or Letter Secured Hedge Agreements or Cash Management Agreements and the denominator of which shall be the sum of the aggregate Outstanding Amount under the Credit reimbursement obligations, accrued interest thereon, accrued fees Agreement and all other amounts payable to it hereunder, from the assignee (to the extent owed in respect of such outstanding principal and accrued interest and fees) Secured Hedge Agreements or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderCash Management Agreements.
Appears in 2 contracts
Sources: Credit Agreement (Kapstone Paper & Packaging Corp), Credit Agreement (Kapstone Paper & Packaging Corp)
Designation. The Company (a) Notwithstanding anything to the contrary contained herein, any Lender (a "DESIGNATING LENDER") may at any timegrant to one or more special purpose funding vehicles (each, and an "SPV"), identified as such in writing from time to timetime by the Designating Lender to the Administrative Agent and the Borrowers, upon the option to provide to the Borrowers all or any part of any Loan that such Designating Lender would otherwise be obligated to make to the Borrowers pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPV to make any Loan, (ii) if an SPV elects not less than 15 Business Days’ noticeto exercise such option or otherwise fails to provide all or any part of such Loan, notify the Agent Designating Lender shall be obligated to make such Loan pursuant to the terms hereof and (iii) the Designating Lender shall remain liable for any indemnity or other payment obligation with respect to its Commitment hereunder. The making of a Loan by an SPV hereunder shall utilize the Commitment of the Designating Lender to the same extent, and as if, such Loan were made by such Designating Lender.
(b) As to any Loans or portion thereof made by it, each SPV shall have all the rights that a Lender making such Loans or portion thereof would have had under this Agreement; PROVIDED, HOWEVER, that each SPV shall have granted to its Designating Lender an irrevocable power of attorney, to deliver and receive all communications and notices under this Agreement (and any Loan Documents) and to exercise on such SPV's behalf, all of such SPV's voting rights under this Agreement. In the Company intends event that any Notes have been issued to designate the Designated Lender hereunder, no additional Notes shall be required to evidence the Loans or portion thereof made by an SPV; and the related Designating Lender shall be deemed to hold its Notes as agent for such SPV to the extent of the Loans or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its Designating Lender as agent for such SPV.
(c) Each party hereto hereby agrees that no SPV shall be liable for any indemnity or payment under this Agreement for which a Subsidiary as a “Designated Subsidiary” for purposes Lender would otherwise be liable. In furtherance of the foregoing, each party hereto hereby agrees (which agreements shall survive the termination of this Agreement. On or after ) that, prior to the date that is 15 Business Days one year and one day after such noticethe payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, upon delivery to the Agent and each Lender of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially it will not institute against, or join any other person in the form of Exhibit D heretoinstituting against, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andSPV any bankruptcy, as suchreorganization, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a)arrangement, if the designation of such Designated Subsidiary obligates the Agent insolvency or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceedings under the laws of the United States or any State thereof.
(d) In addition, notwithstanding anything to the contrary contained in this SECTION 12.6 or otherwise in this Agreement, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either SPV may (i) may at any time and without paying any processing fee therefor, assign or participate all or a portion of its interest in any Loans to the Designating Lender or, with the prior consent of the Borrowers and the Agent (provided, that if a Default has occurred and is continuing, the consent of the Borrowers shall not legally lend to, establish be required) to any financial institutions providing liquidity and/or credit support to or for the account of and/or do any business whatsoever with such Designated Subsidiary directly SPV to support the funding or through an Affiliate maintenance of such Lender as provided in the immediately preceding paragraph or Loans and (ii) has internal policies in place that prohibit it from lending todisclose on a confidential basis any non-public information relating to its Loan to any rating agency, establishing commercial paper dealer or provider of any surety, guarantee or credit for the account of and/or doing any business whatsoever with or liquidity enhancements to such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting LenderSPV, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal Persons agree to keep such information confidential to the outstanding principal same extent required by the Lenders hereunder. This SECTION 12.6 may not be amended without the written consent of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderany Designating Lender affected thereby.
Appears in 2 contracts
Sources: Credit Agreement (Nationwide Financial Services Inc/), 364 Day Credit Agreement (Nationwide Financial Services Inc/)
Designation. The Subject to any applicable limitations set forth herein and in the other Loan Documents, the Company may at any time, and from time to time, upon not less than 15 Business Days’ notice, notify the Agent that the Company intends to designate a Subsidiary as a “Designated Subsidiary” for purposes of this Agreement. On or after the date that is 15 Business Days after such notice, upon by delivery to the Agent and each Lender of a Borrower Designation Letter Agreement duly executed by the Company and the respective Subsidiary and a specified Wholly-Owned Subsidiary, in substantially in the form of Exhibit D J hereto, designate such Subsidiary shall thereupon become as a “Designated SubsidiaryBorrower” for purposes of this Agreement andand the Revolving Credit Facilities hereunder (provided, that, in any event, a Domestic Subsidiary may only become a Borrower under the US Revolving Credit Facility, and a Foreign Subsidiary may only become a Borrower under the Multicurrency Revolving Credit Facility), and such designation shall become effective upon the execution and delivery to the Agent (each in form and substance reasonably satisfactory to the Agent) of (i) the aforementioned executed Borrower Designation Agreement, (ii) a loan certificate of such Subsidiary, in substantially the form of Exhibit F hereto, and including the attachments thereto specified in Section 3.01(c) hereof, (iii) all amendments or joinders to any Notes issued under the applicable Revolving Credit Facility, (iv) if such Subsidiary is not already a Guarantor, all Collateral Documents, guarantees and other documents and instruments as suchsuch Subsidiary shall be required to deliver to become a Guarantor (v) all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations and (vi) reaffirmations of their respective guarantees by each Guarantor of the Obligations under the applicable Revolving Credit Facility; provided that, to the extent any proposed Designated Borrower is not organized under the law of Australia, Canada, Japan, Luxembourg the Netherlands or any state of the U.S., the Agent shall have all received tax and regulatory advice satisfactory to the Agent (on the basis of the rights and obligations effect on the Revolving Credit Lenders) in respect of such proposed Designated Borrower becoming a Borrower hereunderhereunder and the Loan Parties shall enter into an amendment as reasonably requested by the Agent in connection therewith. The Agent shall promptly notify each Lender of the Company’s notice of each such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a), if the designation of such Designated Subsidiary obligates the Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than within five Business Days after notice of the delivery designation under Section 9.09(a) of such notice, for a Designated Subsidiary Borrower that is organized under the laws of a jurisdiction other than of the United States States, Australia, Canada, Japan, Luxembourg, the Netherlands or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (ii) has whose internal policies in place that prohibit it from policies, consistently applied, preclude lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph Borrower (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary Borrower shall have the right to borrow hereunder, either (A) (i) replace such Protesting Lender in accordance with Section 2.20 or (ii) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that (x) the Company shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld and (y) such Protesting Lender shall have received payment of an amount equal to the aggregate outstanding principal amount of its Advances and/or Letter of Credit reimbursement obligationsAdvances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) hereunder or (B) cancel its request to designate such Subsidiary as a “Designated SubsidiaryBorrower” hereunder.
Appears in 2 contracts
Sources: Syndicated Facility Agreement (Sealed Air Corp/De), Syndicated Facility Agreement (Sealed Air Corp/De)
Designation. The Company (1) Notwithstanding anything to the contrary contained herein, any Lender (a “Designating Lender”) may at any timegrant to one or more special purpose funding vehicles (each, and an “SPV”) identified as such in writing from time to timetime by the Designating Lender to the Administrative Agent and the Borrower the option to provide to the Borrower all or any part of the Term Loan that such Designating Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement, upon provided that (i) nothing herein shall constitute a commitment by any SPV to make any portion of the Term Loan, (ii) if an SPV elects not less than 15 Business Days’ noticeto exercise such option or otherwise fails to provide all or any part of the Term Loan, notify the Agent that Designating Lender shall be obligated to make the Company intends Term Loan pursuant to designate a Subsidiary as a “Designated Subsidiary” for purposes the terms of this Agreement, (iii) the Designating Lender shall remain liable for any indemnity or other payment obligation applicable to it hereunder and (iv) any such grant or designation to an SPV shall be recorded in the Register in accordance with Section 10.04(c) or in the Participant Register in accordance with Section 10.04(e). On The making of the Term Loan by an SPV hereunder shall reduce the Term Loan Commitment of the related Designating Lender to the same extent, and as if, such Term Loan were made by such Designating Lender.
(2) As to any portion of the Term Loan made by it, each SPV shall have all the rights that a Lender making such portion of the Term Loan would have had under this Agreement; provided that each SPV hereby grants to its Designating Lender an irrevocable power of attorney to deliver and receive all communications and notices under this Agreement and to exercise on such SPV’s behalf all of such SPV’s voting rights under this Agreement. No additional Term Note shall be required to evidence any portion of the Term Loan made by an SPV and the related Designating Lender shall be deemed to hold its Term Note, if any, as agent for such SPV to the extent of the portion of the Term Loan funded by such SPV. Any payments for the account of any SPV shall be paid to its Designating Lender as agent for such SPV.
(3) Each party hereto hereby agrees that no SPV shall be liable for any indemnity or after payment under this Agreement for which a Lender would otherwise be liable. In furtherance of the foregoing, each party hereto hereby agrees (which agreements shall survive the termination of this Agreement) that, prior to the date that is 15 Business Days one year and one day after such noticethe payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, upon delivery to the Agent and each Lender of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially it will not institute against, or join any other Person in the form of Exhibit D heretoinstituting against, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andSPV any bankruptcy, as suchreorganization, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a)arrangement, if the designation of such Designated Subsidiary obligates the Agent insolvency or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceedings under the laws of the United States or any State thereof.
(4) In addition, notwithstanding anything to the contrary contained in this Section 10.04(i) or otherwise in this Agreement, any Lender maySPV may at any time and with paying any processing fee therefore, with notice assign or participate all or a portion of its interest in the Term Loan to the Agent and the Company, fulfill its Commitment by causing an Affiliate related Designating Lender or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company any financial institution providing liquidity and/or credit support to or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit for the account of and/or do such SPV to support the funding or maintenance of the Term Loan to any business whatsoever with rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancements to such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderSPV.
Appears in 2 contracts
Sources: Term Loan Agreement (Parker-Hannifin Corp), 364 Day Term Loan Agreement (Parker-Hannifin Corp)
Designation. The Company (a) Notwithstanding anything in this Agreement to the contrary, any Bank (a "Designating Bank") may at any timegrant to one or more special purpose funding vehicles (each an "SPV"), and identified in writing from time to timetime by such Designating Bank to Agent and Borrower, upon not less than 15 Business Days’ notice, notify the Agent option to provide to Borrower all or any part of any Loan that the Company intends such Designating Bank would otherwise be obligated to designate a Subsidiary as a “Designated Subsidiary” for purposes of make to Borrower pursuant to this Agreement. On ; provided that (i) nothing in this Section shall constitute a commitment by any SPV to make any Loan, and (ii) if an SPV designated by a Designating Bank to make Loans elects not to exercise such option or after the date that is 15 Business Days after otherwise fails to provide all or any part of such noticeLoan, upon delivery such Designating Bank shall still be obligated to make such Loan pursuant to the Agent and each Lender terms hereof. The making of a Designation Letter duly executed Loan by an SPV hereunder shall reduce the Company availability under the Commitment of the Designating Bank to the same extent, and the respective Subsidiary and substantially in the form of Exhibit D heretoas if, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andLoan were made by such Designating Bank.
(b) As to any Loans or portion thereof made by an SPV, as such, each such SPV shall have all of the rights that a Bank making such Loans or portion thereof would have under this Agreement; provided, however, that each SPV shall have granted its Designating Bank an irrevocable power of attorney to deliver and obligations receive all communications and notices under this Agreement and any other Loan Document and to exercise, in its reasonable discretion, on behalf of a Borrower hereundersuch SPV, all of such SPV's voting rights under this Agreement. The Agent No additional Note shall promptly notify each Lender be required to evidence the Loans or portion thereof made by an SPV and the Designating Bank shall be deemed to hold its Note as agent for such SPV to the extent of the Company’s notice Loans or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its respective Designating Bank as agent for such SPV.
(c) Agent, Borrower and the Banks agree that no SPV shall be liable for an indemnity or payment under this Agreement for which a Bank would otherwise be liable and the Designating Bank shall remain liable for its Commitment Percentage of such pending designation by indemnity or payment to the Company and the identity extent such Designating Bank would otherwise be liable. In furtherance of the respective Subsidiary. Following foregoing, Agent, Borrower and each of the giving Banks hereby agree (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all of the outstanding commercial paper or other senior indebtedness of any notice pursuant to this Section 9.09(a)SPV, if the designation none of such Designated Subsidiary obligates the Agent Agent, Borrower or any Lender to comply with “know your customer” Bank shall institute against, or similar identification procedures join any other Person in circumstances where the necessary information is not already available to itinstituting against, the Company shallsuch SPV any bankruptcy, promptly upon the reasonable request of the Agent reorganization, arrangement, insolvency or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceeding under the laws of the United States or any State thereof.
(d) In addition, notwithstanding anything to the contrary contained in this Section 10.11, or otherwise in this Agreement, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either SPV may (i) may not legally lend toat any time and without paying any processing fee therefor, establish assign (or grant a participation in) all or a portion of its interest in any Loans to its Designating Bank or to any financial institution providing liquidity and/or credit support to or for the account of and/or do any business whatsoever with such Designated Subsidiary directly SPV to support the funding or through an Affiliate maintenance of such Lender as provided in the immediately preceding paragraph or Loans, and (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing disclose on a confidential basis any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal non-public information relating to the outstanding principal Loans made by such SPV to any rating agency, commercial paper dealer or provider of its Advances and/or Letter any surety, guarantee or credit or liquidity enhancements to such SPV. This Section 10.11 may not be amended without the prior written consent of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderany Designating Bank affected thereby.
Appears in 2 contracts
Sources: Credit Agreement (Standard Register Co), Credit Agreement (Nordson Corp)
Designation. The Company Parent Borrower may at any time, and from time to time, upon not less than 15 Business Days’ notice, notify the Agent that the Company intends to designate a Subsidiary as a “Designated Subsidiary” for purposes of this Agreement. On or time after the date that is 15 Business Days after such noticeClosing Date, upon by delivery to the Administrative Agent and each Lender of a Designation Letter Agreement duly executed by the Company Parent Borrower and the respective Subsidiary and substantially in the form of Exhibit D hereto, designate any wholly-owned Subsidiary as a “Designated Subsidiary” for purposes of this Agreement and such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement and, as such, shall have all of the rights and obligations of a Borrower hereunder. The Administrative Agent shall promptly notify each Lender of the Company’s notice of each such pending designation by the Company Parent Borrower and the identity of the respective Subsidiary. Following Notwithstanding the giving foregoing, (a) no Lender or Issuing Bank shall be required to make Advances to, or issue Letters of any notice pursuant to this Section 9.09(a)Credit for, if the designation of such Designated Subsidiary obligates the Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder in the event that the making of such Advances or issuance of such Letters of Credit would or could reasonably be expected to breach, violate or otherwise be inconsistent with any Subsidiary not organized internal policy (other than with respect to Designated Subsidiaries formed under the laws of any nation that is a member of the United States Organization for Economic Cooperation and Development as of the date hereof), law or any State thereofregulation to which such Lender or Issuing Bank is, any Lender may, with notice to or would be upon the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch making of such Lender to act as the Lender in respect Advance or issuance of such Letters of Credit, subject and (b) no Term Lender shall be required to make any Term Loan to a Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated SubsidiaryIn addition, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any each Lender that either (i) may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify make any Advances to any Designated Subsidiary that is a Foreign Subsidiary of the Agent and such Protesting Lender that the Commitments Parent Borrower through an affiliate or non-U.S. branch of such Protesting Lender shall be terminateddesignated by such Lender at its sole option; provided that such Protesting designation and Advance does not, in and of itself, subject the Borrowers to greater costs pursuant to Section 2.12 or 2.15 than would have been payable if such Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of made such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderAdvance directly.
Appears in 2 contracts
Sources: Credit Agreement (Kraft Heinz Co), Credit Agreement (Kraft Heinz Co)
Designation. The Company (a) Notwithstanding anything to the contrary contained herein, any Bank (a "Designating Bank") may at any timegrant to one or more special purpose funding vehicles (each, and an "SPV"), identified as such in writing from time to timetime by the Designating Bank to the Administrative Agent and the Borrower, upon the option to provide to the Borrower all or any part of any Loan that such Designating Bank would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPV to make any Loan, (ii) if an SPV elects not less than 15 Business Days’ noticeto exercise such option or otherwise fails to provide all or any part of such Loan, notify the Agent Designating Bank shall be obligated to make such Loan pursuant to the terms hereof and (iii) the Designating Bank shall remain liable for any indemnity or other payment obligation with respect to its Commitment hereunder. The making of a Loan by an SPV hereunder shall utilize the Commitment of the Designating Bank to the same extent, and as if, such Loan were made by such Designating Bank.
(b) As to any Loans or portion thereof made by it, each SPV shall have all the rights that a Bank making such Loans or portion thereof would have had under this Agreement; provided, however, that each SPV shall have granted to its Designating Bank an irrevocable power of attorney, to deliver and receive all communications and notices under this Agreement (and any Note) and to exercise on such SPV's behalf, all of such SPV's voting rights under this Agreement. No additional Note shall be required to evidence the Company intends Loans or portion thereof made by an SPV; and the related Designating Bank shall be deemed to designate hold its Note as agent for such SPV to the extent of the Loans or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its Designating Bank as agent for such SPV.
(c) Each party hereto hereby agrees that no SPV shall be liable for any indemnity or payment under this Agreement for which a Subsidiary as a “Designated Subsidiary” for purposes Bank would otherwise be liable. In furtherance of the foregoing, each party hereto hereby agrees (which agreements shall survive the termination of this Agreement. On or after ) that, prior to the date that is 15 Business Days one year and one day after such noticethe payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, upon delivery to the Agent and each Lender of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially it will not institute against, or join any other person in the form of Exhibit D heretoinstituting against, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andSPV any bankruptcy, as suchreorganization, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a)arrangement, if the designation of such Designated Subsidiary obligates the Agent insolvency or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceedings under the laws of the United States or any State thereof.
(d) In addition, notwithstanding anything to the contrary contained in this Section 12.13 or otherwise in this Agreement, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either SPV may (i) may not legally lend toat any time and without paying any processing fee therefor, establish participate all or a portion of its interest in any Loans to the Designating Bank or to any financial institutions providing liquidity and/or credit support to or for the account of and/or do any business whatsoever with such Designated Subsidiary directly SPV to support the funding or through an Affiliate maintenance of such Lender as provided in the immediately preceding paragraph or Loans and (ii) has internal policies in place that prohibit it from lending todisclose on a confidential basis any non-public information relating to its Loans to any rating agency, establishing commercial paper dealer or provider of any surety, guarantee or credit for or liquidity enhancements to such SPV. This Section 12.13 may not be amended without the account written consent of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderDesignating Bank affected thereby.
Appears in 2 contracts
Sources: Credit Agreement (Maytag Corp), Credit Agreement (Maytag Corp)
Designation. The Company may at any time, [_____________] hereby designates (x) itself as a [Treasury Management Bank/Swap Bank] under the Credit Agreement and from time (y) the [Treasury Management Agreement/ Swap Contract] described on Schedule 1 hereto to time, upon not less than 15 Business Days’ notice, notify be a “[Secured Treasury Management Agreement/Secured Swap Contract]” and hereby represents and warrants to the Administrative Agent that such [Treasury Management Agreement/Swap Contract] satisfies all the Company intends requirements under the Loan Documents to designate a Subsidiary as a “Designated Subsidiary” for purposes of be so designated. By executing and delivering this Agreement. On or after the date that is 15 Business Days after such notice, upon delivery to the Agent and each Lender of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially in the form of Exhibit D hereto, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement and, as such, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a), if the designation of such Designated Subsidiary obligates the Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to itNotice, the Company shall[Treasury Management Bank/Swap Bank], promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph Credit Agreement, hereby agrees to be bound by all of the provisions of the Loan Documents which are applicable to it as a [Treasury Management Bank/Swap Bank] or a Secured Party thereunder and hereby (iia) confirms that it has internal policies in place that prohibit received a copy of the Loan Documents and such other documents and information as it from lending tohas deemed appropriate to make its own decision to enter into this Designation Notice, establishing credit for (b) appoints and authorizes the account of and/or doing Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Credit Agreement, the other Loan Documents or any business whatsoever other instrument or document furnished pursuant hereto or thereto as are delegated to the Administrative Agent by the terms thereof, together with such Designated Subsidiary directly powers as are incidental thereto, and (c) agrees that it will be bound by the provisions of the Loan Documents and will perform in accordance with its terms all the obligations which by the terms of the Loan Documents are required to be performed by it as a [Treasury Management Bank/Swap Bank] or through an Affiliate Secured Party. Without limiting the foregoing, the [Treasury Management Bank/Swap Bank] agrees to indemnify the Administrative Agent as contemplated by Section 11.04 of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With Credit Agreement with respect to each Protesting Lenderany action taken by it in respect of the Collateral or any breach by it of the Loan Documents and, with respect to all other matters covered by Section 11.04 of the Company shallCredit Agreement, effective agrees to undertake a portion of the liability of the Secured Parties thereunder (without relieving the Secured Parties of their obligations) determined based on or before net termination liability (if any) of the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal Loan Party to the outstanding principal [Treasury Management Bank/Swap Bank] under the applicable [Secured Treasury Management Agreement/Secured Swap Contract] in lieu of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderaggregate exposure.
Appears in 1 contract
Designation. The Company (a) Notwithstanding anything to the contrary contained herein, any Bank (a "Designating Bank") may at any timegrant to one or more special purpose funding vehicles (each, and an "SPV"), identified as such in writing from time to timetime by the Designating Bank to the Administrative Agent and the Borrower, upon the option to provide to the Borrower all or any part of any Money Market Loan that such Designating Bank would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPV to make any Money Market Loan, (ii) if any SPV elects not less than 15 Business Days’ noticeto exercise such option or otherwise fails to provide all or any part of such Money Market Loan, notify the Agent Designating Bank shall be obligated to make such Money Market Loan pursuant to the terms hereof, and (iii) the Designating Bank shall remain liable for any indemnity or other payment obligation with respect to its Commitment hereunder.
(b) As to any Money Market Loans or portion thereof made by it, each SPV shall have all the rights that a Bank making such Money Market Loans or portion thereof would have had under this Agreement; provided, however, that each SPV shall have granted to its Designating Bank an irrevocable power of attorney, to deliver and receive all communications and notices under this Agreement (and any other Loan Documents) and to exercise on such SPV's behalf, all of such SPV's voting rights under this Agreement. No additional Money Market Note shall be required to evidence the Company intends Money Market Loans or portion thereof made by an SPV; and the related Designating Bank shall be deemed to designate hold its Money Market Note as agent for such SPV to the extent of the Money Market Loans or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its Designating Bank as agent for such SPV.
(c) Each party hereto hereby agrees that no SPV shall be liable for any indemnity or payment under this Agreement for which a Subsidiary as a “Designated Subsidiary” for purposes Bank would otherwise be liable. In furtherance of the foregoing, each party hereto hereby agrees (which agreements shall survive the termination of this Agreement. On or after ) that, prior to the date that is 15 Business Days one year and one day after such noticethe payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, upon delivery to the Agent and each Lender of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially it will not institute against, or join any other person in the form of Exhibit D heretoinstituting against, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andSPV any bankruptcy, as suchreorganization, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a)arrangement, if the designation of such Designated Subsidiary obligates the Agent insolvency or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceedings under the laws of the United States or any State thereof.
(d) In addition, notwithstanding anything to the contrary contained in this Section 9.17 or otherwise in this Agreement, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either SPV may (i) may not legally lend toat any time and without paying any processing fee therefor, establish assign or participate all or a portion of its interest in any Money Market Loans to the Designating Bank or to any financial institutions providing liquidity and/or credit support to or for the account of and/or do any business whatsoever with such Designated Subsidiary directly SPV to support the funding or through an Affiliate maintenance of such Lender as provided in the immediately preceding paragraph or Money Market Loans and (ii) has internal policies in place that prohibit it from lending todisclose on a confidential basis any non-public information relating to its Money Market Loans to any rating agency, establishing commercial paper dealer or provider of any surety, guarantee or credit for or liquidity enhancements to such SPV. This Section 9.17 may not be amended without the account written consent of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderDesignating Bank affected thereby.
Appears in 1 contract
Sources: Credit Agreement (La-Z-Boy Inc)
Designation. The Company (a) Notwithstanding anything in this Agreement to the contrary, any Lender (a “Designating Lender”) may at any timegrant to one or more special purpose funding vehicles (each an “SPV”), and identified in writing from time to timetime by such Designating Lender to Agent and Borrower, upon not less than 15 Business Days’ notice, notify the Agent option to provide to Borrower all or any part of any Loan that the Company intends such Designating Lender would otherwise be obligated to designate a Subsidiary as a “Designated Subsidiary” for purposes of make to Borrower pursuant to this Agreement. On ; provided that (i) nothing in this Section shall constitute a commitment by any SPV to make any Loan, and (ii) if an SPV designated by a Designating Lender to make Loans elects not to exercise such option or after the date that is 15 Business Days after otherwise fails to provide all or any part of such noticeLoan, upon delivery such Designating Lender shall still be obligated to make such Loan pursuant to the Agent and each Lender terms hereof. The making of a Designation Letter duly executed Loan by an SPV hereunder shall reduce the Company availability under the Commitment of the Designating Lender to the same extent, and the respective Subsidiary and substantially in the form of Exhibit D heretoas if, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andLoan were made by such Designating Lender.
(b) As to any Loans or portion thereof made by an SPV, as such, each such SPV shall have all of the rights that a Lender making such Loans or portion thereof would have under this Agreement; provided, however, that each SPV shall have granted its Designating Lender an irrevocable power of attorney to deliver and obligations receive all communications and notices under this Agreement and any other Loan Document and to exercise, in its reasonable discretion, on behalf of a Borrower hereundersuch SPV, all of such SPV’s voting rights under this Agreement. The Agent No additional Note shall promptly notify each be required to evidence the Loans or portion thereof made by an SPV and the Designating Lender shall be deemed to hold its Note as agent for such SPV to the extent of the Company’s notice Loans or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its respective Designating Lender as agent for such SPV.
(c) Agent, Borrower and the Lenders agree that no SPV shall be liable for an indemnity or payment under this Agreement for which a Lender would otherwise be liable and the Designating Lender shall remain liable for its Commitment Percentage of such pending designation by indemnity or payment to the Company and the identity extent such Designating Lender would otherwise be liable. In furtherance of the respective Subsidiary. Following foregoing, Agent, Borrower and each of the giving Lenders hereby agree (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all of the outstanding commercial paper or other senior indebtedness of any notice pursuant to this Section 9.09(a)SPV, if the designation none of such Designated Subsidiary obligates the Agent Agent, Borrower or any Lender to comply with “know your customer” shall institute against, or similar identification procedures join any other Person in circumstances where the necessary information is not already available to itinstituting against, the Company shallsuch SPV any bankruptcy, promptly upon the reasonable request of the Agent reorganization, arrangement, insolvency or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceeding under the laws of the United States or any State thereof.
(d) In addition, notwithstanding anything to the contrary contained in this Section 10.13, or otherwise in this Agreement, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either SPV may (i) may not legally lend toat any time and without paying any Table of Contents processing fee therefor, establish assign (or grant a participation in) all or a portion of its interest in any Loans to its Designating Lender or to any financial institution providing liquidity and/or credit support to or for the account of and/or do any business whatsoever with such Designated Subsidiary directly SPV to support the funding or through an Affiliate maintenance of such Lender as provided in the immediately preceding paragraph or Loans, and (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing disclose on a confidential basis any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal non-public information relating to the outstanding principal Loans made by such SPV to any rating agency, commercial paper dealer or provider of its Advances and/or Letter any surety, guarantee or credit or liquidity enhancements to such SPV. This Section 10.13 may not be amended without the prior written consent of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderany Designating Lender affected thereby.
Appears in 1 contract
Sources: Credit Agreement (Steris Corp)
Designation. The Company Delegation Notwithstanding any other provision herein to the contrary, Seller may request in writing to Buyer at least 5 Business Days prior to any timeproposed delegation or designation to consent to Seller designating, and from time at Seller’s own expense, any of its Affiliates to time, upon not less than 15 Business Days’ notice, notify the Agent that the Company intends to designate a Subsidiary as a “Designated Subsidiary” for purposes (a) perform Seller’s obligations in respect of this Agreement. On Confirmation or after (b) receive any payment or delivery under this Confirmation, provided that (i) Seller may delegate its payment obligations under the date that is 15 Business Days after such notice, upon delivery Agreement to the Agent and each Lender of a Designation Letter duly executed Issuer such that any such payment by Seller to Buyer shall be made by the Company Issuer on Seller’s behalf, without any prior request to, or any prior consent from, Buyer and (ii) no such delegation (including, without limitation, pursuant to the respective Subsidiary and substantially in foregoing sub-clause (i)) shall affect Seller's primary liability as principal for the form payment or performance of Exhibit D heretothe relevant obligation. Buyer may not unreasonably withhold, delay or condition its consent to Seller’s request, provided that if (i) such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement anddesignation or delegation, as suchthe case may be, shall have all of is or will not be in accordance with applicable laws, rules or regulations, (ii) Buyer is or will be required to contract, subcontract or otherwise engage with any such designee or delegee or pay any fees, costs or expenses in relation to any such designee or delegee, or (iii) the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of proposed designee or delegee fails to meet the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a), if the designation of such Designated Subsidiary obligates the Agent or any Lender to comply with “know your know-your-customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request anti-money laundering requirements of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested Buyer that are required by the Agent or any Lender Buyer’s then-applicable internal policies in order for the Agent Buyer to onboard such proposed designee or such Lender delegee, then any withholding, delay or conditioning of Buyer’s consent shall not be deemed to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulationsunreasonable. If the Company Seller shall designate as a Designated Subsidiary hereunder any Subsidiary not organized remain liable to Buyer under the laws of the United States or any State thereof, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit Transaction for the account performance of and/or do any business whatsoever with obligation of Seller designated to be performed by a designee or delegated by Seller, provided that if such Designated Subsidiary directly designee or through an Affiliate delegee of such Lender as provided Seller has performed in full the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending toobligations of Seller under this Confirmation, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect Seller’s obligations to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender Buyer under this Confirmation shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (discharged to the extent of such outstanding principal performance. Act of Insolvency: Paragraph 2(a) shall be deleted in its entirety and accrued interest and feesbe replaced by: “Act of Insolvency” shall occur with respect to any Person when such Person shall (1) be dissolved (other than pursuant to a consolidation, amalgamation or merger); (2) make a general assignment, arrangement or composition with or for the Company benefit of its creditors; (3) institute or the relevant Designated Subsidiary (have instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition shall be presented for its winding-up or liquidation, and, in the case of all other amountsany such proceeding or petition instituted or presented against it, such proceeding or petition (A) results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation or (B) cancel is not dismissed, discharged, stayed or restrained in each case within 60 days of the institution or presentation thereof; (4) have a resolution passed for its request winding-up, official management or liquidation (other than pursuant to designate a consolidation, amalgamation or merger); (5) seek or become subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets, in each case in connection with its bankruptcy insolvency, winding-up or liquidation; (6) have a secured party take possession of all or substantially all its assets or have a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such Subsidiary as a “Designated Subsidiary” hereunder.secured party shall maintain possession, or any such process shall not be dismissed, discharged, stayed or restrained, in each case within 60 days thereafter; (7) cause or become subject to any event which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in clauses (1) to (6) (inclusive); or (8) take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts. Disapplication and Modification of Provisions of the Annex I: The following provisions of Annex I to the Agreement shall not apply to the Transaction evidenced by this Confirmation: Parts 1(a), 1(b), 1(d)(i), 1(d)(iii), 1(d)(iv), 1(n), 2(b), and 2(c) of Annex I.
Appears in 1 contract
Sources: Global Master Repurchase Agreement (BC Partners Lending Corp)
Designation. The Company may at any time, [ ] hereby designates the [Secured Cash Management Agreement] [Secured Hedge Agreement] described on Schedule 1 hereto to be a [“Secured Cash Management Agreement”] [“Secured Hedge Agreement”] and from time hereby represents and warrants to time, upon not less than 15 Business Days’ notice, notify the Administrative Agent that such [Secured Cash Management Agreement] [Secured Hedge Agreement] satisfies all the Company intends requirements under the Loan Documents to designate a Subsidiary as a “Designated Subsidiary” for purposes of be so designated. By executing and delivering this Agreement. On or after the date that is 15 Business Days after such notice, upon delivery to the Agent and each Lender of a Secured Party Designation Letter duly executed by the Company and the respective Subsidiary and substantially in the form of Exhibit D hereto, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement and, as such, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a), if the designation of such Designated Subsidiary obligates the Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to itNotice, the Company shallDesignor, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph Credit Agreement, hereby agrees to be bound by all of the provisions of the Loan Documents which are applicable to it as a provider of a [Secured Cash Management Agreement] [Secured Hedge Agreement] and hereby (a) confirms that it has received a copy of the Loan Documents and such other documents and information as it has deemed appropriate to make its own decision to enter into this Secured Party Designation Notice, (b) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Credit Agreement, the other Loan Documents or (ii) has internal policies in place that prohibit it from lending toany other instrument or document furnished pursuant thereto as are delegated to the Administrative Agent by the terms thereof, establishing credit for the account of and/or doing any business whatsoever together with such Designated Subsidiary directly or through an Affiliate of such Lender powers as provided in the immediately preceding paragraph are incidental thereto (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lenderincluding, without limitation, the Company shallprovisions of Section 10.01 of the Credit Agreement), effective on or before and (c) agrees that it will be bound by the date that such Designated Subsidiary shall have provisions of the right Loan Documents and will perform in accordance with its terms all the obligations which by the terms of the Loan Documents are required to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to performed by it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderprovider of a [Secured Cash Management Agreement] [Secured Hedge Agreement]. Without limiting the foregoing, the Designor agrees to indemnify the Administrative Agent as contemplated by Section 11.04 of the Credit Agreement. GOVERNING LAW. THIS SECURED PARTY DESIGNATION NOTICE AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS SECURED PARTY DESIGNATION NOTICE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Appears in 1 contract
Sources: Credit Agreement
Designation. The Company (a) Notwithstanding anything to the contrary contained herein, any Lender (a “Designating Lender”) may at any timegrant to one or more special purpose funding vehicles (each, and an “SPV”), identified as such in writing from time to time, upon not less than 15 Business Days’ notice, notify time by the Designating Lender to the Agent and the Borrowers, the option to provide to the Borrowers all or any part of any Loan that such Designating Lender would otherwise be obligated to make to the Company intends Borrowers pursuant to designate this Agreement; provided that (i) nothing herein shall constitute a Subsidiary commitment by any SPV to make any Loan, (ii) if an SPV elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Designating Lender shall be obligated to make such Loan pursuant to the terms hereof and (iii) the Designating Lender shall remain liable for any indemnity or other payment obligation with respect to its Commitment hereunder. The making of a Loan by an SPV hereunder shall utilize the Commitment of the Designating Lender to the same extent, and as if, such Loan were made by such Designating Lender.
(b) As to any Loans or portion thereof made by it, each SPV shall have all the rights that a “Lender making such Loans or portion thereof would have had under this Agreement; provided, however, that each SPV shall have granted to its Designating Lender an irrevocable power of attorney, to deliver and receive all communications and notices under this Agreement (and any Loan Documents) and to exercise on such SPV’s behalf, all of such SPV’s voting rights under this Agreement. In the event that any Notes have been issued to the Designated Subsidiary” Lender hereunder, no additional Notes shall be required to evidence the Loans or portion thereof made by an SPV; and the related Designating Lender shall be deemed to hold its Notes as agent for purposes such SPV to the extent of the Loans or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its Designating Lender as agent for such SPV.
(c) Each party hereto hereby agrees that no SPV shall be liable for any indemnity or payment under this Agreement for which a Lender would otherwise be liable. In furtherance of the foregoing, each party hereto hereby agrees (which agreements shall survive the termination of this Agreement. On or after ) that, prior to the date that is 15 Business Days one year and one day after such noticethe payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, upon delivery to the Agent and each Lender of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially it will not institute against, or join any other person in the form of Exhibit D heretoinstituting against, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andSPV any bankruptcy, as suchreorganization, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a)arrangement, if the designation of such Designated Subsidiary obligates the Agent insolvency or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceedings under the laws of the United States or any State thereof.
(d) In addition, notwithstanding anything to the contrary contained in this Section 12.6 or otherwise in this Agreement, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either SPV may (i) may at any time and without paying any processing fee therefor, assign or participate all or a portion of its interest in any Loans to the Designating Lender or, with the prior consent of the Borrowers and the Agent (provided, that if a Default has occurred and is continuing, the consent of the Borrowers shall not legally lend to, establish be required) to any financial institutions providing liquidity and/or credit support to or for the account of and/or do any business whatsoever with such Designated Subsidiary directly SPV to support the funding or through an Affiliate maintenance of such Lender as provided in the immediately preceding paragraph or Loans and (ii) has internal policies in place that prohibit it from lending todisclose on a confidential basis any non-public information relating to its Loan to any rating agency, establishing commercial paper dealer or provider of any surety, guarantee or credit for the account of and/or doing any business whatsoever with or liquidity enhancements to such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting LenderSPV, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal Persons agree to keep such information confidential to the outstanding principal same extent required by the Lenders hereunder. This Section 12.6 may not be amended without the written consent of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderany Designating Lender affected thereby.
Appears in 1 contract
Sources: Five Year Credit Agreement (Nationwide Financial Services Inc/)
Designation. The Company (i) Notwithstanding anything to the contrary contained herein, any Lender (a "Designating Lender") may at any timegrant to one or more special purpose funding vehicles (each, and an "SPV"), identified as such in writing from time to time, upon not less than 15 Business Days’ notice, notify time by the Designated Lender to the Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Designating Lender would otherwise be obligated to make to the Company intends Borrower pursuant to designate this Agreement; provided that (i) nothing herein shall constitute a Subsidiary commitment by any SPV to make any Loan, (ii) if an SPV elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Designating Lender shall be obligated to make such Loan pursuant to the terms hereof and (iii) the Designating Lender shall remain liable for any indemnity or other payment obligation with respect to its Commitment hereunder. The making of a Loan by an SPV hereunder shall utilize the Commitment of the Designating Lender to the same extent, and as if, such Loan were made by such Designating Lender.
(ii) As to any Loans or portion thereof made by it, each SPV shall have all the rights that a “Designated Subsidiary” Lender making such Loans or portion thereof would have had under this Agreement; provided, however, that each SPV shall have granted to its Designating Lender an irrevocable power of attorney, to deliver and receive all communications and notices under this Agreement (and any Loan Documents) and to exercise on such SPV's behalf, all of such SPV's voting rights under this Agreement. No additional Note shall be required to evidence the Loans or portion thereof made by an SPV; and the related Designating Lender shall be deemed to hold its Note as agent for purposes such SPV to the extent of the Loans or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its Designating Lender as agent for such SPV. Notwithstanding any term or condition hereof, no SPV, unless it shall have become a Lender hereunder in accordance with the terms of Section 10.14(c), shall be a party hereto or have any right to vote or give or withhold its consent under this Agreement.
(iii) Each party hereto hereby agrees that no SPV shall be liable for any indemnity or payment under this Agreement for which a Lender would otherwise be liable. In furtherance of the foregoing, each party hereto hereby agrees (which agreements shall survive the termination of this Agreement. On or after ) that, prior to the date that is 15 Business Days one year and one day after such noticethe later of (a) payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, upon delivery to (b) the Agent payment in full of all Loans and each Lender Letter of a Designation Letter duly executed by Credit Reimbursement Obligations, and (c) the Company termination of all Commitments and the respective Subsidiary and substantially expiration or termination of all Letters of Credit, it will not institute against, or join any other person in the form of Exhibit D heretoinstituting against, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andSPV any bankruptcy, as suchreorganization, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a)arrangement, if the designation of such Designated Subsidiary obligates the Agent insolvency or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceedings under the laws of the United States or any State thereof.
(iv) In addition, notwithstanding anything to the contrary contained in this Section 10.14(d) or otherwise in this Agreement (other than the proviso set forth directly below in the Section 10.14(d)(iv), any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either SPV may (i) may not legally lend with notice to, establish but without the prior written consent of the Borrower or the Agent, at any time and without paying any processing fee therefor, assign or participate all or a portion of its interest in any Loans to the Designating Lender or to any financial institutions providing liquidity and/or credit support to or for the account of and/or do any business whatsoever with such Designated Subsidiary directly SPV to support the funding or through an Affiliate maintenance of such Lender as provided in the immediately preceding paragraph or Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancements to such SPV; provided, however, that in no event may any non-public financial information provided by the Borrower or any other Loan Party under Section 6.01 be provided by any SPV to any other Person. In no event shall the Borrower be obligated to pay to any SPV that has internal policies in place that prohibit it from lending to, establishing credit for made a Loan any greater amount than the account Borrower would have been obligated to pay under this Agreement if the Designating Lender had made such Loan. This Section 10.14(d) may not be amended without the written consent of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Designating Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderaffected thereby.
Appears in 1 contract
Sources: Credit Agreement (Black Box Corp)
Designation. The Company may at any time, and from time to time, upon not less than 15 Business Days’ notice, notify the Agent that the Company intends to designate a Subsidiary as a “Designated Subsidiary” for purposes of this Agreement. On or after the date that is 15 Business Days after such notice, upon delivery to the Agent and each Lender of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially in the form of Exhibit D hereto, such Subsidiary shall thereupon become a “Designated Subsidiary” for For purposes of this Agreement andand Related Agreements, each Member and each EOC Beneficial Owner hereby designates each of the Sellers’ Representatives, acting jointly, as suchsuch Member’s or EOC Beneficial Owner’s attorney-in-fact, with full powers of substitution to act in the name, place and stead of such Member or EOC Beneficial Owner, to execute any and all documents on behalf of the Member or EOC Beneficial Owner, and to take any other actions on behalf of the Member or EOC Beneficial Owner that may be required pursuant to this Agreement and the Related Agreements, in each case, as may be necessary or desirable in order to consummate the Transactions contemplated herein and perform its obligations hereunder before, at or following the Closing. Without limiting the generality of the foregoing, Sellers’ Representatives, acting jointly, shall have the full and exclusive authority to: (i) agree with Parent with respect to any matter deemed necessary by Sellers’ Representatives in connection with this Agreement and the Related Agreements calling for the agreement of the Members, give and receive notices on behalf of each Member, grant consents and waivers for each Member, and act on behalf of each Member or each EOC Beneficial Owner in connection with any matter as to which Members are or may be obligated under this Agreement and the Related Agreements, all in the absolute discretion of Sellers’ Representatives; (ii) execute and deliver all documents, in the name of and for and on behalf of each Member, contemplated by this Agreement and the Related Agreements; (iii) take all actions necessary or desirable in connection with the defense, resolutions, or settlement of any indemnification claims pursuant to Section 12.2 and performance of obligations hereunder, including to withhold funds for satisfaction of expenses or other liabilities or obligations or to withhold funds for potential indemnification claims made hereunder; (iv) to terminate, amend, or waive any provision of this Agreement or the other Related Agreements, provided that any such action, if material to the rights and obligations of the Members, in the reasonable judgment of Sellers’ Representatives, shall be taken in substantially the same manner with respect to all Members, unless otherwise agreed by each such Member or EOC Beneficial Owner who is subject to any disparate treatment of a Borrower hereunderpotentially adverse nature; and (v) to do or refrain from doing any further act or deed on behalf of Members which Sellers’ Representatives deem necessary or appropriate, in their sole discretion, relating to the subject matter of this Agreement as fully and completely as any of such Members could do if personally present and acting. The Agent appointment of Sellers’ Representatives shall promptly notify each Lender be deemed irrevocable and coupled with an interest, and Parent, and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a)Sellers’ Representatives, if the designation of such Designated Subsidiary obligates the Agent acting jointly, or any Lender successor representatives of Members in all matters referred to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit for the account of herein and/or do any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderRelated Agreements.
Appears in 1 contract
Designation. The Company may at By virtue of approval of the Merger and this Agreement, effective as of the Closing Date and without further act of any timeEquityholder or the Company, Equityholder Representative hereby is designated and shall serve as the representative, exculsive agent and true and lawful attorney-in-fact for each Equityholder under this Agreement, the Escrow Agreement and the Equityholder Representative Engagement Agreement to take or refrain from taking any and all actions on behalf of Equityholders pursuant to this Agreement, the Escrow Agreement and the Equityholder Representative Engagement Agreement, including in connection with the determination of the Merger Consideration and the related disbursements from escrow and the Deferred Merger Consideration and any associated elections. Without limiting the generality of the foregoing, Equityholder Representative has full and exclusive power and authority, on behalf of each Equityholder and such Equityholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement, the Escrow Agreement and the Equityholder Representative Engagement Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement, the Escrow Agreement and the Equityholder Representative Engagement Agreement, (iii) receive service of process in connection with any claims under this Agreement or the Escrow Agreement, (iv) agree to, negotiate, bring action regarding, enter into settlements and compromises of, assume the defense of claims, the Deferred Merger Consideration or any Objections Statement, comply with orders of courts with respect to such claims, the Deferred Merger Consideration or any Objections Statement, and to take or refrain from time taking all actions necessary or appropriate in the judgment of Equityholder Representative in connection with such claims, the Deferred Merger Consideration or any Objections Statement, (v) give and receive notices and communications, (vi) authorize delivery to timePurchaser of the Adjustment Escrow Amount or any portion thereof in satisfaction of claims brought by Purchaser for Losses, upon not less than 15 Business Days’ notice(vii) object to such deliveries, notify (viii) authorize the Agent that distribution of the Company intends Adjustment Escrow Amount and any earnings and proceeds thereon, (ix) incur and pay expenses on behalf of the Equityholders and (x) take or refrain from taking all actions necessary or appropriate in the sole judgment of Equityholder Representative on behalf of Equityholders in connection with this Agreement, the Escrow Agreement or the Equityholder Representative Engagement Agreement. Notwithstanding the foregoing, the Equityholder Representative shall have no obligation to designate a Subsidiary act on behalf of the Equityholders, except as a “Designated Subsidiary” expressly provided in this Agreement, the Escrow Agreement and in the Equityholder Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Equityholder Representative in any ancillary agreement, schedule, exhibit or the Schedules to this Agreement. On or after the date that is 15 Business Days after such notice, upon delivery Notwithstanding anything to the Agent and each Lender contrary herein, in the event of a Designation Letter duly executed by the Company claim hereunder against a single Equityholder, and the respective Subsidiary and substantially in the form of Exhibit D heretonot all Equityholders, such Subsidiary affected Equityholder shall thereupon become a “Designated Subsidiary” for purposes be entitled to control the defense of this Agreement and, as such, such claim. No bond shall have all be required of the rights and obligations of a Borrower hereunderEquityholder Representative. The Agent Equityholder Representative shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a), if the designation of such Designated Subsidiary obligates the Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend entitled to, establish credit for the account of and/or do any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either : (A) notify rely upon the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligationsUpdated Allocation Schedule, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request rely upon any signature reasonably believed by it to designate such Subsidiary as be genuine, and (C) reasonably assume that a “Designated Subsidiary” hereunder.signatory has proper authorization to sign on behalf of the applicable Equityholder or other party
Appears in 1 contract
Sources: Merger Agreement (Veradigm Inc.)
Designation. The Company (a) Notwithstanding anything to the contrary contained herein, any Lender (a “Designating Lender”) may at any timegrant to one or more special purpose funding vehicles (each, and an “SPV”), identified as such in writing from time to timetime by the Designating Lender to the Administrative Agent and the Borrowers, upon the option to provide to the Borrowers all or any part of any Loan that such Designating Lender would otherwise be obligated to make to the Borrowers pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPV to make any Loan, (ii) if an SPV elects not less than 15 Business Days’ noticeto exercise such option or otherwise fails to provide all or any part of such Loan, notify the Agent Designating Lender shall be obligated to make such Loan pursuant to the terms hereof and (iii) the Designating Lender shall remain liable for any indemnity or other payment obligation with respect to its Commitment hereunder. The making of a Loan by an SPV hereunder shall utilize the Commitment of the Designating Lender to the same extent, and as if, such Loan were made by such Designating Lender.
(b) As to any Loans or portion thereof made by it, each SPV shall have all the rights that a Lender making such Loans or portion thereof would have had under this Agreement; provided, however, that each SPV shall have granted to its Designating Lender an irrevocable power of attorney, to deliver and receive all communications and notices under this Agreement (and any Loan Documents) and to exercise on such SPV’s behalf, all of such SPV’s voting rights under this Agreement. In the Company intends event that any Notes have been issued to designate the Designated Lender hereunder, no additional Notes shall be Table of Contents required to evidence the Loans or portion thereof made by an SPV; and the related Designating Lender shall be deemed to hold its Notes as agent for such SPV to the extent of the Loans or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its Designating Lender as agent for such SPV.
(c) Each party hereto hereby agrees that no SPV shall be liable for any indemnity or payment under this Agreement for which a Subsidiary as a “Designated Subsidiary” for purposes Lender would otherwise be liable. In furtherance of the foregoing, each party hereto hereby agrees (which agreements shall survive the termination of this Agreement. On or after ) that, prior to the date that is 15 Business Days one year and one day after such noticethe payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, upon delivery to the Agent and each Lender of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially it will not institute against, or join any other person in the form of Exhibit D heretoinstituting against, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andSPV any bankruptcy, as suchreorganization, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a)arrangement, if the designation of such Designated Subsidiary obligates the Agent insolvency or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceedings under the laws of the United States or any State thereof.
(d) In addition, notwithstanding anything to the contrary contained in this Section 12.6 or otherwise in this Agreement, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either SPV may (i) may at any time and without paying any processing fee therefor, assign or participate all or a portion of its interest in any Loans to the Designating Lender or, with the prior consent of the Borrowers and the Agent (provided, that if a Default has occurred and is continuing, the consent of the Borrowers shall not legally lend to, establish be required) to any financial institutions providing liquidity and/or credit support to or for the account of and/or do any business whatsoever with such Designated Subsidiary directly SPV to support the funding or through an Affiliate maintenance of such Lender as provided in the immediately preceding paragraph or Loans and (ii) has internal policies in place that prohibit it from lending todisclose on a confidential basis any non-public information relating to its Loan to any rating agency, establishing commercial paper dealer or provider of any surety, guarantee or credit for the account of and/or doing any business whatsoever with or liquidity enhancements to such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting LenderSPV, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal Persons agree to keep such information confidential to the outstanding principal same extent required by the Lenders hereunder. This Section 12.6 may not be amended without the written consent of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderany Designating Lender affected thereby.
Appears in 1 contract
Sources: Five Year Credit Agreement (Nationwide Financial Services Inc/)
Designation. The Company (i) Notwithstanding anything to the contrary contained herein (but subject to Sections 2.18 and 2.19), any Lender (a "Designating Lender") may at any timegrant to one or more special purpose funding vehicles (each, and an "SPV"), identified as such in writing from time to time, upon not less than 15 Business Days’ notice, notify time by the Designating Lender to the Agent and the Borrowers, the option to provide to the Borrowers all or any part of any Advance that such Designating Lender would otherwise be obligated to make to the Borrowers pursuant to this Agreement; provided that (A) nothing herein shall constitute a commitment by any SPV to make any Advance, (B) if an SPV fails to provide all or any part of such Advance, the Designating Lender shall be obligated to make such Advance pursuant to the terms hereof and (C) the Designating Lender shall, at all times, remain liable for any indemnity or other payment obligation with respect to its Commitment hereunder. The making of a Advance by an SPV hereunder shall utilize the applicable Commitment of the Designating Lender to the same extent, and as if such Advance were made by such Designating Lender.
(ii) As to any Advances or portion thereof made by it, each SPV shall have all the rights that the Company intends Designating Lender making such Advances or portion thereof would have had under this Agreement; provided, however, that each SPV shall have granted to designate its Designating Lender an irrevocable power of attorney, to deliver and receive all communications and notices under this Agreement and to exercise on such SPV's behalf, all of such SPV's voting rights under this Agreement. No additional Notes shall be required to evidence the Advances or portion thereof made by an SPV; and the related Designating Lender shall be deemed to hold its Note, if any, as agent for such SPV to the extent of the Advances or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its Designating Lender as agent for such SPV.
(iii) Each party hereto hereby agrees that no SPV shall be liable for any indemnity or payment under this Agreement for which a Subsidiary as a “Designated Subsidiary” for purposes Lender would otherwise be liable. In furtherance of the foregoing, each party hereto hereby agrees (which agreements shall survive the termination of this Agreement. On or after ) that, prior to the date that is 15 Business Days one year and one day after such noticethe payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, upon delivery to the Agent and each Lender of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially it will not institute against, or join any other person in the form of Exhibit D heretoinstituting against, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andSPV any bankruptcy, as suchreorganization, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a)arrangement, if the designation of such Designated Subsidiary obligates the Agent insolvency or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceedings under the laws of the United States or any State thereof.
(iv) In addition, notwithstanding anything to the contrary contained in this Section 9.07(h) or otherwise in this Agreement, any Lender maySPV may (A) at any time and without paying any processing fee therefor, with notice assign or sell a participation in all or a portion of its interest in any Advances to the Agent and the Company, fulfill its Commitment by causing an Affiliate Designating Lender or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company any financial institutions providing liquidity and/or credit support to or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Subsidiary directly SPV to support the funding or through an Affiliate maintenance of such Lender as provided in the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company Advances and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel disclose on a confidential basis any non-public information relating to its request Advances to designate any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancements to such Subsidiary as a “Designated Subsidiary” hereunderSPV. This Section 9.07(h) may not be amended without the written consent of any Designating Lender affected thereby.
Appears in 1 contract
Sources: Credit Agreement (Lubrizol Corp)
Designation. The Company (a) Notwithstanding anything to the contrary contained herein, any Lender (a "Designating Lender") may at any timegrant to one or more special purpose funding vehicles (each, and an "SPV"), identified as such in writing from time to timetime by the Designating Lender to the Administrative Agent and Parent, upon the option to provide to the Borrowers all or any part of any Loan that such Designating Lender would otherwise be obligated to make to the Borrowers pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPV to make any Loan, (ii) if an SPV elects not less than 15 Business Days’ noticeto exercise such option or otherwise fails to provide all or any part of such Loan, notify the Agent Designating Lender shall be obligated to make such Loan pursuant to the terms hereof, and (iii) the Designating Lender shall remain liable for any indemnity or other payment obligation with respect to its Commitment hereunder. The making of a Loan by an SPV hereunder shall utilize the Commitment of the Designating Lender to the same extent, and as if, such Loan were made by such Designating Lender.
(b) As to any Loans or portion thereof made by it, each SPV shall have all the rights that a Lender making such Loans or portion thereof would have had under this Agreement; provided, however, that each SPV shall have granted to its Designating Lender an irrevocable power of attorney, to deliver and receive all communications and notices under this Agreement and any other Loan Documents and to exercise on such SPV's behalf, all of such SPV's voting rights under this Agreement. No additional Note shall be required to evidence the Company intends Loans or portion thereof made by an SPV; and the related Designating Lender shall be deemed to designate hold its Note as agent for such SPV to the extent of the Loans or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its Designating Lender as agent for such SPV.
(c) Each party hereto hereby agrees that no SPV shall be liable for any indemnity or payment under this Agreement for which a Subsidiary as a “Designated Subsidiary” for purposes Lender would otherwise be liable. In furtherance of the foregoing, each party hereto hereby agrees (which agreements shall survive the termination of this Agreement. On or after ) that, prior to the date that is 15 Business Days one year and one day after such noticethe payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, upon delivery to the Agent and each Lender of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially it will not institute against, or join any other person in the form of Exhibit D heretoinstituting against, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andSPV any bankruptcy, as suchreorganization, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a)arrangement, if the designation of such Designated Subsidiary obligates the Agent insolvency or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceedings under the laws of the United States or any State thereof.
(d) In addition, notwithstanding anything to the contrary contained in this Section 12.7 or otherwise in this Agreement, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either SPV may (i) may not legally lend toat any time and without paying any processing fee therefor, establish assign or participate all or a portion of its interest in any Loans to the Designating Lender or to any financial institutions providing liquidity and/or credit support to or for the account of and/or do any business whatsoever with such Designated Subsidiary directly SPV to support the funding or through an Affiliate maintenance of such Lender as provided in the immediately preceding paragraph or Loans and (ii) has internal policies in place that prohibit it from lending todisclose on a confidential basis any non-public information relating to its Loans to any rating agency, establishing commercial paper dealer or provider of any surety, guarantee or credit for or liquidity enhancements to such SPV. This Section 12.7 may not be amended without the account written consent of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Designating Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderaffected thereby.
Appears in 1 contract
Sources: Credit Agreement (Vectren Corp)
Designation. The Company (a) Notwithstanding anything in this Agreement to the contrary, any Bank (a "Designating Bank") may at any timegrant to one or more special purpose funding vehicles (each an "SPV"), and identified in writing from time to timetime by such Designating Bank to Agent and Borrowers, upon not less than 15 Business Days’ notice, notify the Agent option to provide to a Borrower all or any part of any Loan that the Company intends such Designating Bank would otherwise be obligated to designate a Subsidiary as a “Designated Subsidiary” for purposes of make to such Borrower pursuant to this Agreement. On ; provided that (i) nothing in this Section shall constitute a commitment by any SPV to make any Loan, (ii) if an SPV designated by a Designating Bank to make Loans elects not to exercise such option or after the date that is 15 Business Days after otherwise fails to provide all or any part of such noticeLoan, upon delivery such Designating Bank shall still be obligated to make such Loan pursuant to the Agent terms hereof and each Lender (iii) the Designating Bank shall remain liable for any indemnity or other payment obligation under the Revolving Credit Commitment of the Designating Bank. The making of a Designation Letter duly executed Loan by an SPV hereunder shall reduce the Company availability under the Commitment of the Designating Bank to the same extent, and the respective Subsidiary and substantially in the form of Exhibit D heretoas if, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andLoan were made by such Designating Bank.
(b) As to any Loans or portion thereof made by an SPV, as such, each such SPV shall have all of the rights that a Bank making such Loans or portion thereof would have under this Agreement; provided, however, that each SPV shall have granted its Designating Bank an irrevocable power of attorney to deliver and obligations receive all communications and notices under this Agreement and any other Loan Document and to exercise, in its reasonable discretion, on behalf of a Borrower hereundersuch SPV, all of such SPV's voting rights under this Agreement. The Agent No additional Note shall promptly notify each Lender be required to evidence the Loans or portion thereof made by an SPV and the Designating Bank shall be deemed to hold its Note as agent for such SPV to the extent of the Company’s notice Loans or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its respective Designating Bank as agent for such SPV.
(c) Agent, Borrowers and the Banks agree that no SPV shall be liable for an indemnity or payment under this Agreement for which a Bank would otherwise be liable and the Designating Bank shall remain liable for its Commitment Percentage of such pending designation by indemnity or payment to the Company and the identity extent such Designating Bank would otherwise be liable. In furtherance of the respective Subsidiary. Following foregoing, Agent, Borrowers and each of the giving Banks hereby agree (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all of the outstanding commercial paper or other senior indebtedness of any notice pursuant to this Section 9.09(a)SPV, if the designation none of such Designated Subsidiary obligates the Agent Agent, any Borrower or any Lender to comply with “know your customer” Bank shall institute against, or similar identification procedures join any other Person in circumstances where the necessary information is not already available to itinstituting against, the Company shallsuch SPV any bankruptcy, promptly upon the reasonable request of the Agent reorganization, arrangement, insolvency or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceeding under the laws of the United States or any State thereof.
(d) In addition, notwithstanding anything to the contrary contained in this Section 10.11, or otherwise in this Agreement, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either SPV may (i) may not legally lend toat any time and without paying any processing fee therefor, establish assign (or grant a participation in) all or a portion of its interest in any Loans to its Designating Bank or to any financial institution providing liquidity and/or credit support to or for the account of and/or do any business whatsoever with such Designated Subsidiary directly SPV to support the funding or through an Affiliate maintenance of such Lender as provided in the immediately preceding paragraph or Loans, and (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing disclose on a confidential basis any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal non-public information relating to the outstanding principal Loans made by such SPV to any rating agency, commercial paper dealer or provider of its Advances and/or Letter any surety, guarantee or credit or liquidity enhancements to such SPV. This Section 10.11 may not be amended without the prior written consent of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderany Designating Bank affected thereby.
Appears in 1 contract
Sources: Credit Agreement (Schulman a Inc)
Designation. The Company (a) Notwithstanding anything in this Agreement to the contrary, any Lender (a "Designating Lender") may at any timegrant to one or more special purpose funding vehicles (each an "SPV"), and identified in writing from time to timetime by such Designating Lender to the Global Agent and Borrower, upon not less than 15 Business Days’ notice, notify the Agent option to provide to Borrower all or any part of any Loan that the Company intends such Designating Lender would otherwise be obligated to designate a Subsidiary as a “Designated Subsidiary” for purposes of make to Borrower pursuant to this Agreement. On ; provided that (i) nothing in this Section shall constitute a commitment by any SPV to make any Loan, and (ii) if an SPV designated by a Designating Lender to make Loans elects not to exercise such option or after the date that is 15 Business Days after otherwise fails to provide all or any part of such noticeLoan, upon delivery such Designating Lender shall still be obligated to make such Loan pursuant to the Agent and each Lender terms hereof. The making of a Designation Letter duly executed Loan by an SPV hereunder shall reduce the Company availability under the commitment of the Designating Lender to the same extent, and the respective Subsidiary and substantially in the form of Exhibit D heretoas if, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andLoan were made by such Designating Lender.
(b) As to any Loans or portion thereof made by an SPV, as such, each such SPV shall have all of the rights that a Lender making such Loans or portion thereof would have under this Agreement; provided, however, that each SPV shall have granted its Designating Lender an irrevocable power of attorney to deliver and obligations receive all communications and notices under this Agreement and any other Loan Document and to exercise, in its reasonable discretion, on behalf of a Borrower hereundersuch SPV, all of such SPV's voting rights under this Agreement. The Agent No additional Note shall promptly notify each be required to evidence the Loans or portion thereof made by an SPV and the Designating Lender shall be deemed to hold its Note as agent for such SPV to the extent of the Company’s notice Loans or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its respective Designating Lender as agent for such SPV.
(c) The Global Agent, Borrower and the Lenders agree that no SPV shall be liable for an indemnity or payment under this Agreement for which a Lender would otherwise be liable and the Designating Lender shall remain liable for its Commitment Percentage of such pending designation by indemnity or payment to the Company and the identity extent such Designating Lender would otherwise be liable. In furtherance of the respective Subsidiary. Following foregoing, the giving Global Agent, Borrower and each of the Lenders hereby agree (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all of the outstanding commercial paper or other senior indebtedness of any notice pursuant to this Section 9.09(a)SPV, if none of the designation of such Designated Subsidiary obligates the Agent Global Agent, Borrower or any Lender to comply with “know your customer” shall institute against, or similar identification procedures join any other Person in circumstances where the necessary information is not already available to itinstituting against, the Company shallsuch SPV any bankruptcy, promptly upon the reasonable request of the Agent reorganization, arrangement, insolvency or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceeding under the laws of the United States or any State thereof.
(d) In addition, notwithstanding anything to the contrary contained in this Section 11.11, or otherwise in this Agreement, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either SPV may (i) may not legally lend toat any time and without paying any processing fee therefor, establish assign (or grant a participation in) all or a portion of its interest in any Loans to its Designating Lender or to any financial institution providing liquidity and/or credit support to or for the account of and/or do any business whatsoever with such Designated Subsidiary directly SPV to support the funding or through an Affiliate maintenance of such Lender as provided in the immediately preceding paragraph or Loans, and (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing disclose on a confidential basis any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal non-public information relating to the outstanding principal Loans made by such SPV to any rating agency, commercial paper dealer or provider of its Advances and/or Letter any surety, guarantee or credit or liquidity enhancements to such SPV. This Section 11.11 may not be amended without the prior written consent of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderany Designating Lender affected thereby.
Appears in 1 contract
Designation. The Company (a) Notwithstanding anything in this Agreement to the contrary, any Bank (a "Designating Bank") may at any timegrant to one or more special purpose funding vehicles (each an "SPV"), and identified in writing from time to timetime by such Designating Bank to Agent and Borrower, upon not less than 15 Business Days’ notice, notify the Agent option to provide to Borrower all or any part of any Loan that the Company intends such Designating Bank would otherwise be obligated to designate a Subsidiary as a “Designated Subsidiary” for purposes of make to Borrower pursuant to this Agreement. On ; provided that (i) nothing in this Section shall constitute a commitment by any SPV to make any Loan, and (ii) if an SPV designated by a Designating Bank to make Loans elects not to exercise such option or after the date that is 15 Business Days after otherwise fails to provide all or any part of such noticeLoan, upon delivery such Designating Bank shall still be obligated to make such Loan pursuant to the Agent and each Lender terms hereof. The making of a Designation Letter duly executed Loan by an SPV hereunder shall reduce the Company availability under the Revolving Credit Commitment of the Designating Bank to the same extent, and the respective Subsidiary and substantially in the form of Exhibit D heretoas if, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andLoan were made by such Designating Bank.
(b) As to any Loans or portion thereof made by an SPV, as such, each such SPV shall have all of the rights that a Bank making such Loans or portion thereof would have under this Agreement; provided, however, that each SPV shall have granted its Designating Bank an irrevocable power of attorney to deliver and obligations receive all communications and notices under this Agreement and any other Loan Document and to exercise, in its reasonable discretion, on behalf of a Borrower hereundersuch SPV, all of such SPV's voting rights under this Agreement. The Agent No additional Note shall promptly notify each Lender be required to evidence the Loans or portion thereof made by an SPV and the Designating Bank shall be deemed to hold its Note as agent for such SPV to the extent of the Company’s notice Loans or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its respective Designating Bank as agent for such SPV.
(c) Agent, Borrower and the Banks agree that no SPV shall be liable for an indemnity or payment under this Agreement for which a Bank would otherwise be liable and the Designating Bank shall remain liable for its Commitment Percentage of such pending designation by indemnity or payment to the Company and the identity extent such Designating Bank would otherwise be liable. In furtherance of the respective Subsidiary. Following foregoing, Agent, Borrower and each of the giving Banks hereby agree (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all of the outstanding commercial paper or other senior indebtedness of any notice pursuant to this Section 9.09(a)SPV, if the designation none of such Designated Subsidiary obligates the Agent Agent, Borrower or any Lender to comply with “know your customer” Bank shall institute against, or similar identification procedures join any other Person in circumstances where the necessary information is not already available to itinstituting against, the Company shallsuch SPV any bankruptcy, promptly upon the reasonable request of the Agent reorganization, arrangement, insolvency or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceeding under the laws of the United States or any State thereof.
(d) In addition, notwithstanding anything to the contrary contained in this Section 10.12, or otherwise in this Agreement, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either SPV may (i) may not legally lend toat any time and without paying any processing fee therefor, establish assign (or grant a participation in) all or a portion of its interest in any Loans to its Designating Bank or to any financial institution providing liquidity and/or credit support to or for the account of and/or do any business whatsoever with such Designated Subsidiary directly SPV to support the funding or through an Affiliate maintenance of such Lender as provided in the immediately preceding paragraph or Loans, and (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing disclose on a confidential basis any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal non‑public information relating to the outstanding principal Loans made by such SPV to any rating agency, commercial paper dealer or provider of its Advances and/or Letter any surety, guarantee or credit or liquidity enhancements to such SPV. This Section 10.12 may not be amended without the prior written consent of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderany Designating Bank affected thereby.
Appears in 1 contract
Designation. The Company (i) Notwithstanding anything to the contrary contained herein, any Lender (a "Designating Lender") may at any timegrant to one or more special purpose funding vehicles (each, and an "SPV"), identified as such in writing from time to timetime by the Designated Lender to the Administrative Agent and the Borrower, upon the option to provide to the Borrower all or any part of any Term Loan that such Designating Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (x) nothing herein shall constitute a commitment by any SPV to make any Term Loan, (y) if an SPV elects not less than 15 Business Days’ noticeto exercise such option or otherwise fails to provide all or any part of such Term Loan, notify the Designating Lender shall be obligated to make such Term Loan pursuant to the terms hereof and (z) the Designating Lender shall remain liable for any indemnity or other payment obligation with respect to its Commitment hereunder. The making of a Term Loan by an SPV hereunder shall utilize the Commitment of the Designating Lender to the same extent, and as if, such Term Loan were made by such Designating Lender.
(ii) As to any Term Loans or portion thereof made by it, each SPV shall have all the rights that a Lender making such Term Loans or portion thereof would have had under this Agreement; provided, however, that each SPV shall have granted to its Designating Lender an irrevocable power of attorney, to deliver and receive all communications and notices under this Agreement (and any Loan Documents) and to exercise, on such SPV's behalf, all of such SPV's voting rights under this Agreement. No additional Note shall be required to evidence the Term Loans or portion thereof made by an SPV; and the related Designating Lender shall be deemed to hold its Note as agent for such SPV to the extent of the Term Loans or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its Designating Lender as agent for such SPV. Notwithstanding any term or condition hereof, no SPV, unless it shall have become a Lender hereunder in accordance with the terms of Section 10.11.2(a), shall be a party hereto or have any right to vote or give or withhold its consent under this Agreement. The Administrative Agent shall have no duty or obligation to give any notices required to be delivered hereunder to any SPV.
(iii) Each party hereto hereby agrees that no SPV shall be liable for any indemnity or payment under this Agreement for which a Lender would otherwise be liable. In furtherance of the Company intends to designate a Subsidiary as a “Designated Subsidiary” for purposes foregoing, each party hereto hereby agrees (which agreements shall survive the termination of this Agreement. On or after ) that, prior to the date that is 15 Business Days one year and one day after such noticethe later of (x) payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, upon delivery to (y) the Agent payment in full of all Term Loans, and each Lender (z) the termination of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially all Commitments, it will not institute against, or join any other person in the form of Exhibit D heretoinstituting against, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andSPV any bankruptcy, as suchreorganization, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a)arrangement, if the designation of such Designated Subsidiary obligates the Agent insolvency or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceedings under the laws of the United States or any State thereof, provided that the Designating Lender for each SPV hereby agrees to indemnify, save and hold harmless each other party hereto for any Lender mayloss, cost, damage and expense arising out of the inability to institute any such proceeding against such SPV.
(iv) In addition, notwithstanding anything to the contrary contained in this Section 10.11.2(b) or otherwise in this Agreement (other than the proviso set forth directly below in this Section 10.11.2(b), any SPV may (y) with notice to, but without the prior written consent of the Borrower or the Administrative Agent, at any time and without paying any processing fee therefor, assign or participate all or a portion of its interest in any Term Loans to the Agent and the Company, fulfill its Commitment by causing an Affiliate Designating Lender or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company any financial institutions providing liquidity and/or credit support to or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit for the account of and/or do such SPV to support the funding or maintenance of Term Loans and (z) disclose on a confidential basis any business whatsoever with non public information relating to its Term Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancements to such Designated Subsidiary directly or through an Affiliate SPV; provided, however, that in no event may any non-public financial information provided by the Borrower under Section 7.3 [Reporting Requirements] be provided by any SPV to any other Person. In no event shall the Borrower be obligated to pay to any SPV that has made a Term Loan any greater amount than the Borrower would have been obligated to pay under this Agreement if the Designating Lender had made such Term Loan. This Section 10.11.2(b) may not be amended without the written consent of such any Designating Lender as provided in the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderaffected thereby.
Appears in 1 contract
Sources: Credit Agreement (Arch Coal Inc)
Designation. The Company (i) Notwithstanding anything to the contrary contained herein, any Lender (a "Designating Lender") may at any timegrant to one or more special purpose funding vehicles (each, and an "SPV"), identified as such in writing from time to time, upon not less than 15 Business Days’ notice, notify time by the Designating Lender to the Agent and the Company, the option to provide to the Borrowers all or any part of any Advance that such Designating Lender would otherwise be obligated to make to the Borrowers pursuant to this Agreement; provided that (A) nothing herein shall constitute a commitment by any SPV to make any Advance, (B) if an SPV fails to provide all or any part of such Advance, the Designating Lender shall be obligated to make such Advance pursuant to the terms hereof and (C) the Designating Lender shall, at all times, remain liable for any indemnity or other payment obligation with respect to its Commitment hereunder. The making of a Advance by an SPV hereunder shall utilize the Commitment of the Designating Lender to the same extent, and as if such Advance were made by such Designating Lender.
(ii) As to any Advances or portion thereof made by it, each SPV shall have all the rights that the Company intends Designating Lender making such Advances or portion thereof would have had under this Agreement; provided, however, that each SPV shall have granted to designate its Designating Lender an irrevocable power of attorney, to deliver and receive all communications and notices under this Agreement and to exercise on such SPV's behalf, all of such SPV's voting rights under this Agreement. No additional Notes shall be required to evidence the Advances or portion thereof made by an SPV; and the related Designating Lender shall be deemed to hold its Note, if any, as agent for such SPV to the extent of the Advances or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its Designating Lender as agent for such SPV.
(iii) Each party hereto hereby agrees that no SPV shall be liable for any indemnity or payment under this Agreement for which a Subsidiary as a “Designated Subsidiary” for purposes Lender would otherwise be liable. In furtherance of the foregoing, each party hereto hereby agrees (which agreements shall survive the termination of this Agreement. On or after ) that, prior to the date that is 15 Business Days one year and one day after such noticethe payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, upon delivery to the Agent and each Lender of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially it will not institute against, or join any other person in the form of Exhibit D heretoinstituting against, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andSPV any bankruptcy, as suchreorganization, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a)arrangement, if the designation of such Designated Subsidiary obligates the Agent insolvency or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceedings under the laws of the United States or any State thereof.
(iv) In addition, notwithstanding anything to the contrary contained in this Section 9.07(h) or otherwise in this Agreement, any Lender maySPV may (A) at any time and without paying any processing fee therefor, with notice assign or sell a participation in all or a portion of its interest in any Advances to the Agent and the Company, fulfill its Commitment by causing an Affiliate Designating Lender or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company any financial institutions providing liquidity and/or credit support to or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Subsidiary directly SPV to support the funding or through an Affiliate maintenance of such Lender as provided in the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company Advances and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel disclose on a confidential basis any non-public information relating to its request Advances to designate any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancements to such Subsidiary as a “Designated Subsidiary” hereunderSPV. This Section 9.07(h) may not be amended without the written consent of any Designating Lender affected thereby.
Appears in 1 contract
Sources: Credit Agreement (Lubrizol Corp)
Designation. The Company (a) Notwithstanding anything in this Agreement to the contrary, any Bank (a "Designating Bank") may at any timegrant to one or more special purpose funding vehicles (each an "SPV"), and identified in writing from time to timetime by such Designating Bank to Agent and Borrower, upon not less than 15 Business Days’ notice, notify the Agent option to provide to Borrower all or any part of any Loan that the Company intends such Designating Bank would otherwise be obligated to designate a Subsidiary as a “Designated Subsidiary” for purposes of make to Borrower pursuant to this Agreement. On ; provided that (i) nothing in this Section shall constitute a commitment by any SPV to make any Loan, and (ii) if an SPV designated by a Designating Bank to make Loans elects not to exercise such option or after the date that is 15 Business Days after otherwise fails to provide all or any part of such noticeLoan, upon delivery such Designating Bank shall still be obligated to make such Loan pursuant to the Agent and each Lender terms hereof. The making of a Designation Letter duly executed Loan by an SPV hereunder shall reduce the Company availability under the Revolving Credit Commitment of the Designating Bank to the same extent, and the respective Subsidiary and substantially in the form of Exhibit D heretoas if, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andLoan were made by such Designating Bank.
(b) As to any Loans or portion thereof made by an SPV, as such, each such SPV shall have all of the rights that a Bank making such Loans or portion thereof would have under this Agreement; provided, however, that each SPV shall have granted its Designating Bank an irrevocable power of attorney to deliver and obligations receive all communications and notices under this Agreement and any other Loan Document and to exercise, in its reasonable discretion, on behalf of a Borrower hereundersuch SPV, all of such SPV's voting rights under this Agreement. The Agent No additional Note shall promptly notify each Lender be required to evidence the Loans or portion thereof made by an SPV and the Designating Bank shall be deemed to hold its Note as agent for such SPV to the extent of the Company’s notice Loans or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its respective Designating Bank as agent for such SPV.
(c) Agent, Borrower and the Banks agree that no SPV shall be liable for an indemnity or payment under this Agreement for which a Bank would otherwise be liable and the Designating Bank shall remain liable for its Commitment Percentage of such pending designation by indemnity or payment to the Company and the identity extent such Designating Bank would otherwise be liable. In furtherance of the respective Subsidiary. Following foregoing, Agent, Borrower and each of the giving Banks hereby agree (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all of the outstanding commercial paper or other senior indebtedness of any notice pursuant to this Section 9.09(a)SPV, if the designation none of such Designated Subsidiary obligates the Agent Agent, Borrower or any Lender to comply with “know your customer” Bank shall institute against, or similar identification procedures join any other Person in circumstances where the necessary information is not already available to itinstituting against, the Company shallsuch SPV any bankruptcy, promptly upon the reasonable request of the Agent reorganization, arrangement, insolvency or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceeding under the laws of the United States or any State thereof.
(d) In addition, notwithstanding anything to the contrary contained in this Section 10.11, or otherwise in this Agreement, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either SPV may (i) may not legally lend toat any time and without paying any processing fee therefor, establish assign (or grant a participation in) all or a portion of its interest in any Loans to its Designating Bank or to any financial institution providing liquidity and/or credit support to or for the account of and/or do any business whatsoever with such Designated Subsidiary directly SPV to support the funding or through an Affiliate maintenance of such Lender as provided in the immediately preceding paragraph or Loans, and (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing disclose on a confidential basis any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal non-public information relating to the outstanding principal Loans made by such SPV to any rating agency, commercial paper dealer or provider of its Advances and/or Letter any surety, guarantee or credit or liquidity enhancements to such SPV. This Section 10.11 may not be amended without the prior written consent of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderany Designating Bank affected thereby.
Appears in 1 contract
Designation. The Company (i) Notwithstanding anything to the contrary contained herein, any Lender (a 'Designating Lender') may at any timegrant to one or more special purpose funding vehicles (each an 'SPV'), and identified as such in writing from time to timetime by the Designating Lender to the Administrative Agent, upon the option to provide to the Borrowers all or any part of any Loan that such Designating Lender would otherwise be obligated to make to the Borrowers pursuant to this Agreement; provided that (a) nothing herein shall constitute a commitment by any SPV to make any Loan, (b) if an SPV elects not less than 15 Business Days’ noticeto exercise such option or otherwise fails to provide all or any part of such Loan, notify the Agent Designating Lender shall be obligated to make such Loan pursuant to the terms hereof, and (c) the Designating Lender shall remain liable for any indemnity or other payment obligation with respect to its Commitment hereunder. The making of a Loan by an SPV hereunder shall utilize the Commitment of the Designating Lender to the same extent, and as if, such Loan were made by such Designating Lender.
(ii) As to any Loan or portion thereof made by it, each SPV shall have all the rights that a Lender making such Loan or portion thereof would have had under this Agreement; provided, however, that each SPV shall have granted to its Designating Lender an irrevocable power of attorney to deliver and receive all communication and notices under this Agreement and any other Loan Documents and to exercise on such SPV's behalf all of such SPV's voting rights under this Agreement. No additional Note shall be required to evidence the Company intends Loans or portion thereof made by an SPV; and the related Designating Lender shall be deemed to designate hold its Note as agent for such SPV to the extent of each Loan or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its Designating Lender as agent for such SPV.
(iii) Each party hereto hereby agrees that no SPV shall be liable for any indemnity or payment under this Agreement for which a Subsidiary as a “Designated Subsidiary” for purposes Lender would otherwise be liable. In furtherance of the foregoing, each party hereto hereby agrees (which agreements shall survive the termination of this Agreement. On or after ) that, prior to the date that is 15 Business Days one year and one day after such noticethe payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, upon delivery to the Agent and each Lender of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially it will not institute against, or join any other person in the form of Exhibit D heretoinstituting against, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andSPV any bankruptcy, as suchreorganization, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a)arrangement, if the designation of such Designated Subsidiary obligates the Agent insolvency or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceeding under the laws of the United States or any State thereof.
(iv) In addition, notwithstanding anything to the contrary contained in this Section 12.6 or otherwise in this Agreement, any Lender maySPV may (a) at any time and without paying any processing fee therefor, with notice assign or participate all or a portion of is interest in any Loan to the Agent and the Company, fulfill its Commitment by causing an Affiliate Designating Lender or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company any financial institution providing liquidity and/or credit support to or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit for the account of and/or do such SPV to support the funding or maintenance of Loans and (b) disclose on a confidential basis any business whatsoever with non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such Designated Subsidiary directly or through an Affiliate SPV. This Section 12.6 may not be amended without the written consent of such each Designating Lender as provided in affected thereby.
1.6 The signature pages shall be amended by deleting the immediately preceding paragraph or following: (i) the term "Commitments"; (ii) has internal policies in place that prohibit it from lending tothe amount "$35,000,000" opposite the signatures of BANK ONE, establishing credit for INDIANA, N.A. and ABN AMRO BANK N.V.; (iii) the account amount "$30,000,000" opposite the signature of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph NATIONAL CITY BANK OF INDIANA; and (a “Protesting Lender”iv) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunder"$100,000,000 TOTAL".
Appears in 1 contract
Sources: Credit Agreement (Vectren Corp)
Designation. The Company may at any timeEach Lender hereby irrevocably designates and appoints the Agent as the agent of such Lender under this Agreement and the other Program Documents, and from time each such Lender irrevocably authorizes the Agent, to time, upon not less than 15 Business Days’ notice, notify take such action on its behalf under the provisions of this Agreement and the other Program Documents to which it is a party or by which it is bound and to exercise such powers and perform such duties as are expressly delegated to the Agent that by the Company intends terms of this Agreement and the other Program Documents, together with such other powers as are reasonably incidental thereto, including, without limitation, (a) receiving all applicable notices referred to designate a Subsidiary in this Agreement or in the other Program Documents on behalf of such Lender, (b) giving all applicable notices referred to in this Agreement or the other Program Documents to or on behalf of such Lender, (c) maintaining the Register pursuant to Section 10.09(d) and (d) receiving payments and deposits from Borrower or the Transferor, as a “Designated Subsidiary” for purposes the case may be, and giving release and acquittance therefor in accordance with the terms of this Agreement. On It is expressly understood and agreed by the parties hereto that (a) this Agreement is executed and delivered by the Agent, not individually or after personally, but solely as Agent in the date that exercise of the powers and authority conferred and vested in it under this Agreement, (b) the representations, undertakings and agreements herein made on the part of the Lenders are made and intended not as personal representations, undertakings and agreements by the Agent but are made and intended for the purpose of binding only the Lenders, (c) nothing herein contained shall be construed as creating any liability on the Agent, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties who are signatories to this Agreement and any other Program Document in which the Agent is 15 Business Days after bound to exercise any powers or perform any obligations of the Lenders and by any person claiming by, through or under such noticeparties and (d) under no circumstances shall the Agent be personally liable for the payment of any indebtedness or expenses of the Lenders or be liable for the actions or omissions of the Lenders or the breach or failure of any obligation, upon delivery representation, warranty or covenant made or undertaken by the Lenders under this Agreement or any other Program Document. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Agent shall have no duties or responsibilities, except those expressly set forth herein or in the other Program Documents, 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 Program Document or otherwise exist against the Agent. The provisions of this Article 9 are solely for the benefit of the Agent and each Lender of a Designation Letter duly executed by the Company its officers, directors, employees, agents, attorneys-in-fact and the respective Subsidiary affiliates, and substantially in the form of Exhibit D hereto, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement and, as such, no other Person shall have all any rights as a third party beneficiary of any of the rights provisions hereof. The Agent shall perform its obligations hereunder with reasonable care, using a degree of skill and obligations attention no less than that which the Agent (i) exercises with respect to comparable duties that it performs when holding comparable assets for itself and (ii) exercises with respect to comparable administrative duties that it performs for comparable assets for others, and in a manner consistent with the standard of a Borrower care exercised by similar administrators relating to the duties to be performed hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a), if the designation of such Designated Subsidiary obligates the Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event have no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) duties or the Company or the relevant Designated Subsidiary (responsibilities except for those set forth in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderthis Agreement.
Appears in 1 contract
Designation. The Company (i) Notwithstanding anything to the contrary contained herein, any Lender (a "Designating Lender") may at any timegrant to one or more special purpose funding vehicles (each, and an "SPV"), identified as such in writing from time to time, upon not less than 15 Business Days’ notice, notify time by the Designated Lender to the Agent and the Borrower, the option to provide to the Borrower all or any part of any Term Loan that such Designating Lender would otherwise be obligated to make to the Company intends Borrower pursuant to designate this Agreement; provided that (x) nothing herein shall constitute a Subsidiary commitment by any SPV to make any Term Loan, (y) if an SPV elects not to exercise such option or otherwise fails to provide all or any part of such Term Loan, the Designating Lender shall be obligated to make such Term Loan pursuant to the terms hereof and (z) the Designating Lender shall remain liable for any indemnity or other payment obligation with respect to its Commitment hereunder. The making of a Term Loan by an SPV hereunder shall utilize the Commitment of the Designating Lender to the same extent, and as if, such Term Loan were made by such Designating Lender.
(ii) As to any Term Loans or portion thereof made by it, each SPV shall have all the rights that a “Designated Subsidiary” Lender making such Term Loans or portion thereof would have had under this Agreement; provided, however, that each SPV shall have granted to its Designating Lender an irrevocable power of attorney, to deliver and receive all communications and notices under this Agreement (and any Loan Documents) and to exercise, on such SPV's behalf, all of such SPV's voting rights under this Agreement. No additional Note shall be required to evidence the Term Loans or portion thereof made by an SPV; and the related Designating Lender shall be deemed to hold its Note as agent for purposes such SPV to the extent of the Term Loans or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its Designating Lender as agent for such SPV. Notwithstanding any term or condition hereof, no SPV, unless it shall have become a Lender hereunder in accordance with the terms of Section 10.11.2(a), shall be a party hereto or have any right to vote or give or withhold its consent under this Agreement. The Agent shall have no duty or obligation to give any notices required to be delivered hereunder to any SPV.
(iii) Each party hereto hereby agrees that no SPV shall be liable for any indemnity or payment under this Agreement for which a Lender would otherwise be liable. In furtherance of the foregoing, each party hereto hereby agrees (which agreements shall survive the termination of this Agreement. On or after ) that, prior to the date that is 15 Business Days one year and one day after such noticethe later of (x) payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, upon delivery to (y) the Agent payment in full of all Term Loans, and each Lender (z) the termination of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially all Commitments, it will not institute against, or join any other person in the form of Exhibit D heretoinstituting against, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andSPV any bankruptcy, as suchreorganization, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a)arrangement, if the designation of such Designated Subsidiary obligates the Agent insolvency or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceedings under the laws of the United States or any State thereof, provided that the Designating Lender for each SPV hereby agrees to indemnify, save and hold harmless each other party hereto for any Lender mayloss, cost, damage and expense arising out of the inability to institute any such proceeding against such SPV.
(iv) In addition, notwithstanding anything to the contrary contained in this Section 10.11.2(b) or otherwise in this Agreement (other than the proviso set forth directly below in this Section 10.11.2(b), any SPV may (y) with notice to, but without the prior written consent of the Borrower or the Agent, at any time and without paying any processing fee therefor, assign or participate all or a portion of its interest in any Term Loans to the Agent and the Company, fulfill its Commitment by causing an Affiliate Designating Lender or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company any financial institutions providing liquidity and/or credit support to or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit for the account of and/or do such SPV to support the funding or maintenance of Term Loans and (z) disclose on a confidential basis any business whatsoever with non public information relating to its Term Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancements to such Designated Subsidiary directly or through an Affiliate SPV; provided, however, that in no event may any non-public financial information provided by the Borrower under Section 7.3 [Reporting Requirements] be provided by any SPV to any other Person. In no event shall the Borrower be obligated to pay to any SPV that has made a Term Loan any greater amount than the Borrower would have been obligated to pay under this Agreement if the Designating Lender had made such Term Loan. This Section 10.11.2(b) may not be amended without the written consent of such any Designating Lender as provided in the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderaffected thereby.
Appears in 1 contract
Designation. The Company (i) Notwithstanding anything to the contrary contained herein, any Lender (a “Designating Lender”) may at any timegrant to one or more special purpose funding vehicles (each, and an “SPV”), identified as such in writing from time to time, upon not less than 15 Business Days’ notice, notify time by the Designating Lender to the Agent and the Company, the option to provide to the Borrowers all or any part of any Advance that such Designating Lender would otherwise be obligated to make to the Borrowers pursuant to this Agreement; provided, that (A) nothing herein shall constitute a commitment by any SPV to make any Advance, (B) if an SPV fails to provide all or any part of such Advance, the Designating Lender shall be obligated to make such Advance pursuant to the terms hereof and (C) the Designating Lender shall, at all times, remain liable for any indemnity or other payment obligation with respect to its Commitment hereunder. The making of an Advance by an SPV hereunder shall utilize the applicable Commitment of the Designating Lender to the same extent, and as if such Advance were made by such Designating Lender
(ii) As to any Advances or portion thereof made by it, each SPV shall have all the rights that the Company intends Designating Lender making such Advances or portion thereof would have had under this Agreement; provided, however, that each SPV shall have granted to designate its Designating Lender an irrevocable power of attorney, to deliver and receive all communications and notices under this Agreement and to exercise on such SPV’s behalf, all of such SPV’s voting rights under this Agreement. No additional Notes shall be required to evidence the Advances or portion thereof made by an SPV; and the related Designating Lender shall be deemed to hold its Note, if any, as agent for such SPV to the extent of the Advances or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its Designating Lender as agent for such SPV.
(iii) Each party hereto hereby agrees that no SPV shall be liable for any indemnity or payment under this Agreement for which a Subsidiary as a “Designated Subsidiary” for purposes Lender would otherwise be liable. In furtherance of the foregoing, each party hereto hereby agrees (which agreements shall survive the termination of this Agreement. On or after ) that, prior to the date that is 15 Business Days one year and one day after such noticethe payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, upon delivery to the Agent and each Lender of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially it will not institute against, or join any other person in the form of Exhibit D heretoinstituting against, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andSPV any bankruptcy, as suchreorganization, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a)arrangement, if the designation of such Designated Subsidiary obligates the Agent insolvency or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceedings under the laws of the United States or any State thereof.
(iv) In addition, notwithstanding anything to the contrary contained in this Section 9.07(h) or otherwise in this Agreement, any Lender maySPV may (A) at any time and without paying any processing fee therefor, with notice assign or sell a participation in all or a portion of its interest in any Advances to the Agent and the Company, fulfill its Commitment by causing an Affiliate Designating Lender or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company any financial institutions providing liquidity and/or credit support to or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Subsidiary directly SPV to support the funding or through an Affiliate maintenance of such Lender as provided in the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company Advances and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel disclose on a confidential basis any non public information relating to its request Advances to designate any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancements to such Subsidiary as a “Designated Subsidiary” hereunderSPV. This Section 9.07(h) may not be amended without the written consent of any Designating Lender affected thereby.
Appears in 1 contract
Sources: Credit Agreement (LUBRIZOL Corp)
Designation. The Company (i) Notwithstanding anything to the contrary contained herein, any Lender (a "Designating Lender") may at any timegrant to one or more special purpose funding vehicles (each, and an "SPV"), identified as such in writing from time to time, upon not less than 15 Business Days’ notice, notify time by the Designated Lender to the Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Designating Lender would otherwise be obligated to make to the Company intends Borrower pursuant to designate this Agreement; provided that (i) nothing herein shall constitute a Subsidiary commitment by any SPV to make any Loan, (ii) if an SPV elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Designating Lender shall be obligated to make such Loan pursuant to the terms hereof and (iii) the Designating Lender shall remain liable for any indemnity or other payment obligation with respect to its Commitment hereunder. The making of a Loan by an SPV hereunder shall utilize the Commitment of the Designating Lender to the same extent, and as if, such Loan were made by such Designating Lender.
(ii) Subject to the terms of this Section 10.14(d), as to any Loans or portion thereof made by it, each SPV shall have all the rights that a “Designated Subsidiary” Lender making such Loans or portion thereof would have had under this Agreement; provided, however, that each SPV shall have granted to its Designating Lender an irrevocable power of attorney, to deliver and receive all communications and notices under this Agreement (and any Loan Documents) and to exercise, exclusively in the place and stead of such SPV, all of such SPV's voting rights under this Agreement in the discretion of such Designation Lender, until the occurrence and continuation of an Event of Default. No additional Note shall be required to evidence the Loans or portion thereof made by an SPV; and the related Designating Lender shall be deemed to hold its Note as agent for purposes such SPV to the extent of the Loans or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its Designating Lender as agent for such SPV.
(iii) Each party hereto hereby agrees that no SPV shall be liable for any indemnity or payment under this Agreement for which a Lender would otherwise be liable. In furtherance of the foregoing, each party hereto hereby agrees (which agreements shall survive the termination of this Agreement. On or after ) that, prior to the date that is 15 Business Days one year and one day after such noticethe later of (a) payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, upon delivery to (b) the Agent payment in full of all Loans and each Lender Letter of a Designation Letter duly executed by Credit Reimbursement Obligations, and (c) the Company termination of all Commitments and the respective Subsidiary and substantially expiration or termination of all Letters of Credit, it will not institute against, or join any other person in the form of Exhibit D heretoinstituting against, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andSPV any bankruptcy, as suchreorganization, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a)arrangement, if the designation of such Designated Subsidiary obligates the Agent insolvency or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceedings under the laws of the United States or any State thereof.
(iv) In addition, notwithstanding anything to the contrary contained in this Section 10.14(d) or otherwise in this Agreement (other than the proviso set forth directly below in the Section 10.14(d)(iv), any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either SPV may (i) may not legally lend toat any time and without paying any processing fee therefor, establish assign or participate all or a portion of its interest in any Loans to the Designating Lender or to any financial institutions providing liquidity and/or credit support to or for the account of and/or do any business whatsoever with such Designated Subsidiary directly SPV to support the funding or through an Affiliate maintenance of such Lender as provided in the immediately preceding paragraph or Loans and (ii) has internal policies in place disclose on a confidential basis to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancements to such SPV information relating to its Loans that prohibit it from lending to, establishing credit for pertains to Borrower's performance under the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees Loan Documents and all other amounts payable information relating to it hereunderits Loans provided by Borrower pursuant to Section 6.01, from other than that described in Section 6.01(f) and other than non-public information provided pursuant to Section 6.01(g). In no event shall the assignee (Borrower be obligated to pay to any SPV that has made a Loan any greater amount than the extent Borrower would have been obligated to pay under this Agreement if the Designating Lender had made such Loan. This Section 10.14(d) may not be amended without the written consent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderany Designating Lender affected thereby.
Appears in 1 contract
Sources: Credit Agreement (Black Box Corp)
Designation. The Company (i) Notwithstanding anything to the contrary contained herein, any Lender (a "Designating Lender") may at any timegrant to one or more special purpose funding vehicles (each, and an "SPV"), identified as such in writing from time to time, upon not less than 15 Business Days’ notice, notify time by the Designated Lender to the Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Designating Lender would otherwise be obligated to make to the Company intends Borrower pursuant to designate this Agreement; provided that (i) nothing herein shall constitute a Subsidiary commitment by any SPV to make any Loan, (ii) if an SPV elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Designating Lender shall be obligated to make such Loan pursuant to the terms hereof and (iii) the Designating Lender shall remain liable for any indemnity or other payment obligation with respect to its Commitment hereunder. The making of a Loan by an SPV hereunder shall utilize the Commitment of the Designating Lender to the same extent, and as if, such Loan were made by such Designating Lender.
(ii) As to any Loans or portion thereof made by it, each SPV shall have all the rights that a “Designated Subsidiary” Lender making such Loans or portion thereof would have had under this Agreement; provided, however, that each SPV shall have granted to its Designating Lender an irrevocable power of attorney, to deliver and receive all communications and notices under this Agreement (and any Loan Documents) and to exercise on such SPV's behalf, all of such SPV's voting rights under this Agreement. No additional Note shall be required to evidence the Loans or portion thereof made by an SPV; and the related Designating Lender shall be deemed to hold its Note as agent for purposes such SPV to the extent of the Loans or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its Designating Lender as agent for such SPV. Notwithstanding any term or condition hereof, no SPV, unless it shall have become a Lender hereunder in accordance with the terms of Section 10.14(c), shall be a party hereto or have any right to vote or give or withhold its consent under this Agreement.
(iii) Each party hereto hereby agrees that no SPV shall be liable for any indemnity or payment under this Agreement for which a Lender would otherwise be liable. In furtherance of the foregoing, each party hereto hereby agrees (which agreements shall survive the termination of this Agreement. On or after ) that, prior to the date that is 15 Business Days one year and one day after such noticethe later of (a) payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, upon delivery to (b) the Agent payment in full of all Loans and each Lender (c) the termination of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially all Commitments, it will not institute against, or join any other person in the form of Exhibit D heretoinstituting against, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andSPV any bankruptcy, as suchreorganization, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a)arrangement, if the designation of such Designated Subsidiary obligates the Agent insolvency or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceedings under the laws of the United States or any State thereof.
(iv) In addition, notwithstanding anything to the contrary contained in this Section 10.14(d) or otherwise in this Agreement (other than the proviso set forth directly below in the Section 10.14(d)(iv), any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either SPV may (i) may not legally lend with notice to, establish but without the prior written consent of the Borrower or the Agent, at any time and without paying any processing fee therefor, assign or participate all or a portion of its interest in any Loans to the Designating Lender or to any financial institutions providing liquidity and/or credit support to or for the account of and/or do any business whatsoever with such Designated Subsidiary directly SPV to support the funding or through an Affiliate maintenance of such Lender as provided in the immediately preceding paragraph or Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancements to such SPV; provided, however, that in no event may any non-public financial information provided by the Borrower or any other Loan Party under Section 6.01 be provided by any SPV to any other Person. In no event shall the Borrower be obligated to pay to any SPV that has internal policies in place that prohibit it from lending to, establishing credit for made a Loan any greater amount than the account Borrower would have been obligated to pay under this Agreement if the Designating Lender had made such Loan. This Section 10.14(d) may not be amended without the written consent of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Designating Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderaffected thereby.
Appears in 1 contract
Designation. The Company (a) Notwithstanding anything to the contrary contained herein, any Bank (a "Designating Bank") may at any timegrant to one or more special purpose funding vehicles (each, and an "SPV"), identified as such in writing from time to time, upon not less than 15 Business Days’ notice, notify time by the Designating Bank to the Agent that and the Company, the option to provide to the Company intends all or any part of any Loan that such Designating Bank would otherwise be obligated to designate make to the Company pursuant to this Agreement; provided that (i) nothing herein shall constitute a Subsidiary commitment by any SPV to make any Loan, (ii) if an SPV elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Designating Bank shall be obligated to make such Loan pursuant to the terms hereof and (iii) the Designating Bank shall remain liable for any indemnity or other payment obligation with respect to its Commitment hereunder. The making of a Loan by an SPV hereunder shall utilize the Commitment of the Designating Bank to the same extent, and as if, such Loan were made by such Designating Bank.
(b) As to any Loans or portion thereof made by it, each SPV shall have all the rights that a “Designated Subsidiary” Bank making such Loans or portion thereof would have had under this Agreement; provided, however, that each SPV shall have granted to its Designating Bank an irrevocable power of attorney to deliver and receive all communications and notices under this Agreement (and any other Loan Document) and to exercise on such SPV's behalf, all of such SPV's voting rights under this Agreement. No additional Note shall be required to evidence the Loans or portion thereof made by an SPV, and the related Designating Bank shall be deemed to hold its Notes, if any, as agent for purposes such SPV to the extent of the Loans or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its Designating Bank as agent for such SPV.
(c) Each party hereto hereby agrees that no SPV shall be liable for any indemnity or payment under this Agreement for which a Bank would otherwise be liable. In furtherance of the foregoing, each party hereto hereby agrees (which agreements shall survive the termination of this Agreement. On or after ) that, prior to the date that is 15 Business Days one year and one day after such noticethe payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, upon delivery to the Agent and each Lender of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially it will not institute against, or join any other person in the form of Exhibit D heretoinstituting against, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andSPV any bankruptcy, as suchreorganization, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a)arrangement, if the designation of such Designated Subsidiary obligates the Agent insolvency or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceedings under the laws of the United States or any State thereof.
(d) In addition, notwithstanding anything to the contrary contained in this section 9.15 or otherwise in this Agreement, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either SPV may (i) may not legally lend toat any time and without paying any processing fee therefor, establish assign or participate all or a portion of its interest in any Loans to the Designating Bank or to any financial institutions providing liquidity and/or credit support to or for the account of and/or do any business whatsoever with such Designated Subsidiary directly SPV to support the funding or through an Affiliate maintenance of such Lender as provided in the immediately preceding paragraph or Loans and (ii) has internal policies in place that prohibit it from lending todisclose on a confidential basis any non-public information relating to its Loans to any rating agency, establishing commercial paper dealer or provider of any surety, guarantee or credit for or liquidity enhancements to such SPV. This section 9.15 may not be amended without the account written consent of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderDesignating Bank affected thereby.
Appears in 1 contract
Sources: Credit Agreement (Alltel Corp)
Designation. The Company (a) Notwithstanding anything in this Agreement to the contrary, any Bank (a “Designating Bank”) may at any timegrant to one or more special purpose funding vehicles (each an “SPV”), and identified in writing from time to timetime by such Designating Bank to Agent and Borrower, upon not less than 15 Business Days’ notice, notify the Agent option to provide to Borrower all or any part of any Loan that the Company intends such Designating Bank would otherwise be obligated to designate a Subsidiary as a “Designated Subsidiary” for purposes of make to Borrower pursuant to this Agreement. On ; provided that (i) nothing in this Section shall constitute a commitment by any SPV to make any Loan, and (ii) if an SPV designated by a Designating Bank to make Loans elects not to exercise such option or after the date that is 15 Business Days after otherwise fails to provide all or any part of such noticeLoan, upon delivery such Designating Bank shall still be obligated to make such Loan pursuant to the Agent and each Lender terms hereof. The making of a Designation Letter duly executed Loan by an SPV hereunder shall reduce the Company availability under the Revolving Credit Commitment of the Designating Bank to the same extent, and the respective Subsidiary and substantially in the form of Exhibit D heretoas if, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andLoan were made by such Designating Bank.
(b) As to any Loans or portion thereof made by an SPV, as such, each such SPV shall have all of the rights that a Bank making such Loans or portion thereof would have under this Agreement; provided, however, that each SPV shall have granted its Designating Bank an irrevocable power of attorney to deliver and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice receive all communications and notices under this Agreement and any other Loan Document and to exercise, in its reasonable discretion, on behalf of such pending designation SPV, all of such SPV’s voting rights under this Agreement. No additional Note shall be required to evidence the Loans or portion thereof made by the Company an SPV and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a), if the designation of such Designated Subsidiary obligates the Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender Designating Bank shall be terminated; provided that deemed to hold its Note as agent for such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (SPV to the extent of the Loans or portion thereof funded by such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunder.SPV. In
Appears in 1 contract
Designation. The Company (i) Notwithstanding anything to the contrary contained herein, any Bank (a “Designating Bank”) may at any timegrant to one or more special purpose funding vehicles (each, and an “SPV”), identified as such in writing from time to timetime by the Designated Bank to the Administrative Agent and the Borrower, upon the option to provide to the Borrower all or any part of any Revolving Credit Loan that such Designating Bank would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (x) nothing herein shall constitute a commitment by any SPV to make any Revolving Credit Loan, (y) if an SPV elects not less than 15 Business Days’ noticeto exercise such option or otherwise fails to provide all or any part of such Revolving Credit Loan, notify the Designating Bank shall be obligated to make such Revolving Credit Loan pursuant to the terms hereof and (z) the Designating Bank shall remain liable for any indemnity or other payment obligation with respect to its Commitment hereunder. The making of a Revolving Credit Loan by an SPV hereunder shall utilize the Commitment of the Designating Bank to the same extent, and as if, such Revolving Credit Loan were made by such Designating Bank.
(ii) As to any Revolving Credit Loans or portion thereof made by it, each SPV shall have all the rights that a Bank making such Revolving Credit Loans or portion thereof would have had under this Agreement; provided, however, that each SPV shall have granted to its Designating Bank an irrevocable power of attorney, to deliver and receive all communications and notices under this Agreement (and any Loan Documents) and to exercise, on such SPV’s behalf, all of such SPV’s voting rights under this Agreement. No additional Note shall be required to evidence the Revolving Credit Loans or portion thereof made by an SPV; and the related Designating Bank shall be deemed to hold its Note as agent for such SPV to the extent of the Revolving Credit Loans or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its Designating Bank as agent for such SPV. Notwithstanding any term or condition hereof, no SPV, unless it shall have become a Bank hereunder in accordance with the terms of Section 10.11.2(a), shall be a party hereto or have any right to vote or give or withhold its consent under this Agreement. The Administrative Agent shall have no duty or obligation to give any notices required to be delivered hereunder to any SPV.
(iii) Each party hereto hereby agrees that no SPV shall be liable for any indemnity or payment under this Agreement for which a Bank would otherwise be liable. In furtherance of the Company intends to designate a Subsidiary as a “Designated Subsidiary” for purposes foregoing, each party hereto hereby agrees (which agreements shall survive the termination of this Agreement. On or after ) that, prior to the date that is 15 Business Days one year and one day after such noticethe later of (x) payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, upon delivery to (y) the Agent payment in full of all Revolving Credit Loans, and each Lender (z) the termination of a Designation Letter duly executed by the Company and the respective Subsidiary and substantially all Commitments, it will not institute against, or join any other person in the form of Exhibit D heretoinstituting against, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement andSPV any bankruptcy, as suchreorganization, shall have all of the rights and obligations of a Borrower hereunder. The Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 9.09(a)arrangement, if the designation of such Designated Subsidiary obligates the Agent insolvency or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Agent or any Lender in order for the Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations. If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized liquidation proceedings under the laws of the United States or any State thereof, provided that the Designating Bank for each SPV hereby agrees to indemnify, save and hold harmless each other party hereto for any Lender mayloss, cost, damage and expense arising out of the inability to institute any such proceeding against such SPV.
(iv) In addition, notwithstanding anything to the contrary contained in this Section 10.11.2(b) or otherwise in this Agreement (other than the proviso set forth directly below in this Section 10.11.2(b), any SPV may (y) with notice to, but without the prior written consent of the Borrower or the Administrative Agent, at any time and without paying any processing fee therefor, assign or participate all or a portion of its interest in any Revolving Credit Loans to the Agent and the Company, fulfill its Commitment by causing an Affiliate Designating Bank or branch of such Lender to act as the Lender in respect of such Designated Subsidiary. As soon as practicable after receiving notice from the Company any financial institutions providing liquidity and/or credit support to or the Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that either (i) may not legally lend to, establish credit for the account of and/or do such SPV to support the funding or maintenance of Revolving Credit Loans and (z) disclose on a confidential basis any business whatsoever with non public information relating to its Revolving Credit Loans to any rating agency, commercial paper dealer or provider of any surety, guaranty or credit or liquidity enhancements to such Designated Subsidiary directly or through an Affiliate SPV; provided, however, that in no event may any non-public financial information provided by the Borrower under Section 7.3 [Reporting Requirements] be provided by any SPV to any other Person. In no event shall the Borrower be obligated to pay to any SPV that has made a Revolving Credit Loan any greater amount than the Borrower would have been obligated to pay under this Agreement if the Designating Bank had made such Revolving Credit Loan. This Section 10.11.2(b) may not be amended without the written consent of such Lender as provided in the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunderDesignating Bank affected thereby.
Appears in 1 contract
Sources: Credit Agreement (Arch Coal Inc)