Subsidiary Borrowers The Company may at any time or from time to time, with the consent of the Administrative Agent add as a party to this Agreement any Subsidiary to be a Subsidiary Borrower hereunder by the execution and delivery to the Administrative Agent and the Lenders of (a) a duly completed Assumption Letter by such Subsidiary, with the written consent of the Company at the foot thereof, (b) such guaranty and subordinated intercompany indebtedness documents as may be reasonably required by the Administrative Agent and such other opinions, documents, certificates or other items as may be required by Section 5.2, such documents with respect to any additional Subsidiaries to be substantially similar in form and substance to the Loan Documents executed on or about the Closing Date by the Subsidiaries parties hereto as of the Closing Date. Upon such execution, delivery and consent such Subsidiary shall for all purposes be a party hereto as a Subsidiary Borrower as fully as if it had executed and delivered this Agreement. So long as the principal of and interest on any Advances made to any Subsidiary Borrower under this Agreement shall have been repaid or paid in full, all Letters of Credit issued for the account of such Subsidiary Borrower have expired or been returned and terminated and all other obligations of such Subsidiary Borrower under this Agreement shall have been fully performed, the Company may, by not less than five (5) Business Days' prior notice to the Administrative Agent (which shall promptly notify the Lenders thereof), terminate such Subsidiary Borrower's status as a "Subsidiary Borrower". The Administrative Agent shall give the Lenders written notice of the addition of any Subsidiary Borrowers to this Agreement.
Co-Borrowers Borrowers are jointly and severally liable for the Obligations and Bank may proceed against one Borrower to enforce the Obligations without waiving its right to proceed against any other Borrower. This Agreement and the Loan Documents are a primary and original obligation of each Borrower and shall remain in effect notwithstanding future changes in conditions, including any change of law or any invalidity or irregularity in the creation or acquisition of any Obligations or in the execution or delivery of any agreement between Bank and any Borrower. Each Borrower shall be liable for existing and future Obligations as fully as if all of the Credit Extensions were advanced to such Borrower. Bank may rely on any certificate or representation made by any Borrower as made on behalf of, and binding on, all Borrowers, including without limitation advance request forms and compliance certificates. Each Borrower appoints each other Borrower as its agent with all necessary power and authority to give and receive notices, certificates or demands for and on behalf of all Borrowers, to act as disbursing agent for receipt of any Credit Extensions on behalf of each Borrower and to apply to Bank on behalf of each Borrower for any Credit Extension, any waivers and any consents. This authorization cannot be revoked, and Bank need not inquire as to one Borrower’s authority to act for or on behalf of another Borrower.
Designated Borrowers (a) The Company may at any time, upon not less than 15 Business Days’ notice from the Company to the Administrative Agent (or such shorter period as may be agreed by the Administrative Agent in its sole discretion), designate any Domestic Subsidiary of the Company (an “Applicant Borrower”) as a Designated Borrower to receive Loans hereunder by delivering to the Administrative Agent (which shall promptly deliver counterparts thereof to each Lender) a duly executed notice and agreement in substantially the form of Exhibit G (a “Designated Borrower Request and Assumption Agreement”). The parties hereto acknowledge and agree that prior to any Applicant Borrower becoming entitled to utilize the credit facilities provided for herein the Administrative Agent shall have received (i) with respect to the first designation of a Subsidiary as a Designated Borrower, the Guaranty duly executed by the Company and opinions of counsel as to the execution, delivery and enforceability of the Guaranty and such other matters concerning the Company and the Guaranty as the Administrative Agent or the Required Lenders may reasonably request, and (ii) with respect to each designation of a Subsidiary as a Designated Borrower such supporting resolutions, incumbency certificates, opinions of counsel, including such opinions from regulatory counsel reasonably acceptable to the Administrative Agent and such other matters concerning the applicable Subsidiary as the Administrative Agent or the Required Lenders may reasonably request, and other documents or information, in form, content and scope reasonably satisfactory to the Administrative Agent, as may be required by the Administrative Agent or the Required Lenders in their sole discretion, and Notes signed by such new Borrowers to the extent any Lenders so require. If the Administrative Agent and the Required Lenders agree that an Applicant Borrower shall be entitled to receive Loans hereunder, then promptly following receipt of all such requested resolutions, incumbency certificates, opinions of counsel and other documents or information, the Administrative Agent shall send a notice in substantially the form of Exhibit H (a “Designated Borrower Notice”) to the Company and the Lenders specifying the effective date upon which the Applicant Borrower shall constitute a Designated Borrower for purposes hereof, whereupon each of the Lenders agrees to permit such Designated Borrower to receive Loans hereunder, on the terms and conditions set forth herein, and each of the parties agrees that such Designated Borrower otherwise shall be a Borrower for all purposes of this Agreement; provided that no Revolving Loan Notice or Letter of Credit Application may be submitted by or on behalf of such Designated Borrower until the date five Business Days after such effective date.
No Commitments Any commitment or transaction by Company (including, without limitation, any borrowing or capital expenditure) other than in the ordinary course of business consistent with past practice;
Canadian Pension Plans The Loan Parties shall not (a) contribute to or assume an obligation to contribute to any Canadian Defined Benefit Plan, without the prior written consent of the Administrative Agent, or (b) acquire an interest in any Person if such Person sponsors, administers, maintains or contributes to or has any liability in respect of any Canadian Defined Benefit Plan, or at any time in the five-year period preceding such acquisition has sponsored, administered, maintained, or contributed to a Canadian Defined Benefit Plan, without the prior written consent of the Administrative Agent.
No Commitment None of the provisions of this Agreement shall be deemed or construed to constitute or imply any commitment or obligation on the part of the Lender to make any future loans or other extensions of credit or financial accommodations to the Borrower.
Administrative Agent Individually The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity as a Lender. Such Person and its Affiliates may accept deposits from, own securities of, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any member of the Consolidated Group or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
No Liability of the Issuing Banks The Borrower assumes all risks of the acts or omissions of any beneficiary or transferee of any Letter of Credit with respect to its use of such Letter of Credit. Neither any Issuing Bank nor any of its officers or directors shall be liable or responsible for: (a) the use that may be made of any Letter of Credit or any acts or omissions of any beneficiary or transferee in connection therewith; (b) the validity, sufficiency or genuineness of documents, or of any endorsement thereon, even if such documents should prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) payment by such Issuing Bank against presentation of documents that do not comply with the terms of a Letter of Credit, including failure of any documents to bear any reference or adequate reference to the Letter of Credit; or (d) any other circumstances whatsoever in making or failing to make payment under any Letter of Credit, except that the Borrower shall have a claim against such Issuing Bank, and such Issuing Bank shall be liable to the Borrower, to the extent of any direct, but not consequential, damages suffered by the Borrower that the Borrower proves were caused by (i) such Issuing Bank’s willful misconduct or gross negligence as determined in a final, non-appealable judgment by a court of competent jurisdiction in determining whether documents presented under any Letter of Credit comply with the terms of the Letter of Credit or (ii) such Issuing Bank’s willful failure to make lawful payment under a Letter of Credit after the presentation to it of a draft and certificates strictly complying with the terms and conditions of the Letter of Credit. In furtherance and not in limitation of the foregoing, such Issuing Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary.
Foreign Subsidiary Borrowers The Borrower from time to time may request in writing that one or more of its Foreign Subsidiaries become borrowers hereunder with the ability to request and receive Loans and Letters of Credit (each, a “Foreign Subsidiary Borrower”). Each such request shall be delivered to the Administrative Agent. The Administrative Agent shall promptly circulate each such request to the Lenders. Each Lender shall notify the Administrative Agent and the Borrower no later than 20 days after its receipt of such request as to whether the applicable Foreign Subsidiary may become a party hereto as a Foreign Subsidiary Borrower. No Foreign Subsidiary shall become a Foreign Subsidiary Borrower unless approved in writing by all of the Lenders and the Administrative Agent. Any Lender that fails to respond to such a request shall be deemed to have rejected the joinder of such Foreign Subsidiary Borrower hereto. Each of the Administrative Agent and each Lender may request from the Borrower certain information in respect of such a Foreign Subsidiary in order to make such decision, including, without limitation, such Foreign Subsidiary’s jurisdiction of organization. Loans and Letters of Credit requested by a Foreign Subsidiary Borrower shall be made or issued from the United States. If the Lenders and the Administrative Agent agree with the Borrower to add a Foreign Subsidiary Borrower hereto, this Agreement (and the other Loan Documents, as relevant) shall be amended to give effect to such addition. All Lenders shall be required to make Loans to each Foreign Subsidiary Borrower, subject to any borrowing sublimits agreed to by the Borrower, the applicable Foreign Subsidiary Borrower, the Administrative Agent, and the Lenders. Each such Foreign Subsidiary Borrower shall be required to deliver, among other things (and in each case in form, scope and substance acceptable to the Administrative Agent and the Lenders), (a) amendments, joinders and other documents required by the Administrative Agent and the Lenders to give such Foreign Subsidiary Borrower the ability to receive extensions of credit hereunder, (b) collateral documents made by such Foreign Subsidiary Borrower in favor of the Administrative Agent, (c) resolutions, charter documents, incumbency certificates, opinions of counsel and other documents or information, as may be required by the Administrative Agent and the Lenders (including without limitation, information necessary to evaluate (i) any withholding tax that may arise in respect of any Loans made to or Letters of Credit issued on behalf of such Foreign Subsidiary, and (ii) the manner in which Loans may be made available to such Foreign Subsidiary, including in Dollars or the requested Agreed Currency), (d) promissory notes signed by such Foreign Subsidiary Borrower to the extent any Lender so requires, and (e) information required under “know your customer”, anti-money laundering or similar regulations to which such Lender is subject. No Foreign Subsidiary Borrower shall be joined hereto if (x) a violation of applicable law would result therefrom or (y) any Lender or the Administrative Agent objects to any adverse change in tax treatment that would result therefrom (including, without limitation, the payment of any tax gross-up or the accrual of any withholding tax). In addition, extensions of credit and other financial accommodations from the United States into the applicable jurisdiction must be permitted under applicable law. The Borrower and each Guarantor of Payment shall guaranty the Obligations of each such Foreign Subsidiary Borrower on terms and conditions acceptable to the Administrative Agent and the Lenders. Each Foreign Subsidiary that is or becomes a Foreign Subsidiary Borrower hereby irrevocably appoints the Borrower as its agent for all purposes relevant to this Agreement and each related document, including service of process.
Effect on Credit Documents Except as amended herein, the Credit Agreement and all other Loan Documents remain in full force and effect as originally executed. Nothing herein shall act as a waiver of any of the Administrative Agent’s or any Lender’s rights under the Loan Documents as amended, including the waiver of any default or event of default, however denominated. The Borrower acknowledges and agrees that this Amendment shall in no manner impair or affect the validity or enforceability of the Credit Agreement. This Amendment is a Loan Document for the purposes of the provisions of the other Loan Documents. Without limiting the foregoing, any breach of representations, warranties, and covenants under this Amendment may be a default or event of default under the other Loan Documents.
