Designated Subsidiaries. (a) The Administrative Agent and the Lenders acknowledge and agree and Celestica hereby confirms that Celestica has designated Celestica International as a Canadian Designated Subsidiary and that there are not, on the date hereof, any other Designated Subsidiaries. (b) Celestica may, from time to time and at any time hereafter, designate any other wholly-owned qualifying Restricted Subsidiary as a Canadian Designated Subsidiary provided that: (i) all Lenders shall have previously consented in writing to the designation of such Subsidiary as a Canadian Designated Subsidiary; (ii) such Subsidiary was incorporated, continued, amalgamated or otherwise created in accordance with and continues to be governed by the laws of a province of Canada or the federal laws of Canada and which is domiciled in Canada; (iii) such Restricted Subsidiary, prior to becoming a Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) a Designated Subsidiary Agreement; (B) if it has not already done so, a Guarantee substantially in the form of Schedule H; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Documents; and (iv) the Restricted Subsidiary which is proposed to become a Designated Subsidiary shall have delivered to the Administrative Agent: (A) a certified copy of the proposed Designated Subsidiary’s Organic Documents; (B) a certified copy of the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable, and to perform its obligations thereunder; (C) a certificate as to the incumbency of its officers signing the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable; (D) a certificate of status, good standing or like certificate with respect to such Designated Subsidiary issued by appropriate government officials of the jurisdiction of its incorporation; and (E) an opinion of counsel to the Designated Subsidiary in form and substance satisfactory to the Lenders’ Counsel and the Administrative Agent, each acting reasonably; (c) Celestica may, from time to time and at any time hereafter, designate any other wholly-owned Restricted Subsidiary which does not fall within the definition of “Canadian Designated Subsidiary” as a Consent Designated Subsidiary, provided that: (i) all Lenders shall have previously consented in writing to the designation of such Subsidiary as a Consent Designated Subsidiary; (ii) Celestica shall have obtained the agreement in writing of a Lender located in the jurisdiction where such Consent Designated Subsidiary is resident, to utilize, subject to the terms of this Agreement, a portion of the Commitment of such Lender or its Affiliate to make Advances to the Consent Designated Subsidiary and such Lender shall have delivered a notice to the Administrative Agent in the form of Schedule M; (iii) such Subsidiary, prior to becoming a Consent Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) a Designated Subsidiary Agreement substantially in the form of Schedule F; (B) a Guarantee substantially in the form of Schedule H, with such changes as the Administrative Agent and the Consent Designated Subsidiary may reasonably require on the advice of their respective counsel to reflect local legal requirements; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Documents; and (iv) the Restricted Subsidiary which is proposed to be designated as a Consent Designated Subsidiary shall have provided to the Administrative Agent such number of copies as the Administrative Agent may request of: (A) a certified copy of the proposed Consent Designated Subsidiary’s Organic Documents; (B) the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable, and to perform its obligations thereunder; (C) a certificate to the incumbency of its officers signing the Consent Designated Subsidiary Agreement, the Guarantee and other applicable Security Documents, if applicable; (D) a certificate of status, good standing or like certificate with respect to such Consent Designated Subsidiary issued by appropriate government officials of the jurisdiction of its incorporation; and (E) an opinion of counsel to the Consent Designated Subsidiary in form and substance satisfactory to the Lenders’ Counsel and the Administrative Agent, each acting reasonably; and (d) Celestica may, from time to time and at any time hereafter, terminate the designation of a Designated Subsidiary as such by the delivery of written notice to the Administrative Agent and from and after the day which is five (5) Banking Days after receipt of such notice, the subject Subsidiary shall no longer be a Designated Subsidiary and shall have no further right or ability to obtain further Advances under the Facility.
Appears in 2 contracts
Samples: Revolving Term Credit Agreement (Celestica Inc), Revolving Term Credit Agreement (Celestica Inc)
Designated Subsidiaries. (a) The Administrative Agent Any Subsidiary shall constitute a "Designated Subsidiary" for purposes of this Agreement if and the Lenders acknowledge and agree and Celestica hereby confirms that Celestica has designated Celestica International as a Canadian Designated Subsidiary and that there are not, on the date hereof, any other Designated Subsidiaries.
(b) Celestica may, from time to time and at any time hereafter, designate any other wholly-owned qualifying Restricted Subsidiary as a Canadian Designated Subsidiary provided thatso long as:
(i) all Lenders shall have previously consented in writing an Election to the designation of Participate designating such Subsidiary as a Canadian Designated SubsidiarySubsidiary for purposes hereof shall have been signed by Alcan and such Subsidiary and delivered to the Administrative Agent;
(ii) such Subsidiary was incorporated, continued, amalgamated or otherwise created in accordance with and continues to be governed by is a Wholly-Owned Subsidiary organized under the laws of, and legally domiciled in, the United States, Canada, the United Kingdom, Germany or Switzerland, or any other country selected by Alcan with the consent of a province of Canada or all the federal laws of Canada and which is domiciled in Canada;Lenders; and
(iii) an Election to Terminate with respect to such Restricted Subsidiary, prior to becoming a Designated Subsidiary, Subsidiary shall not have executed and been delivered to the Administrative Agent: . When any Subsidiary becomes a Designated Subsidiary, the Administrative Agent will promptly notify each Lender thereof.
(Ab) Alcan may elect to terminate the status of any Subsidiary as a Designated Subsidiary Agreement; (B) if it has by delivering to the Administrative Agent an Election to Terminate with respect to such Subsidiary. The delivery of such Election to Terminate shall not already done so, a Guarantee substantially in the form affect any obligation of Schedule H; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done soSubsidiary theretofore incurred hereunder or any obligation of Alcan under Article 9. Promptly after receiving any Election to Terminate, the other applicable Security Documents; andAdministrative Agent will notify each Lender thereof.
(ivc) the Restricted The status of any Subsidiary which is proposed to become as a Designated Subsidiary shall have delivered terminate immediately if, at any time, such Subsidiary shall (i) cease to be a Subsidiary or a "subsidiary" within the Administrative Agent:
(A) a certified copy meaning of the proposed Designated Canada Business Corporations Act or (ii) commence a voluntary case or other proceeding, or an involuntary case or other proceeding shall be commenced against such Subsidiary’s Organic Documents;
(B) a certified copy of the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreementseeking liquidation, the Guarantee and the reorganization or other applicable Security Documents, if applicable, and to perform its obligations thereunder;
(C) a certificate as to the incumbency of its officers signing the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable;
(D) a certificate of status, good standing or like certificate relief with respect to it or its debts under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or such Designated Subsidiary issued shall consent to any such relief or to the appointment of or taking possession by appropriate government officials any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due, or shall take any corporate action to authorize any of the jurisdiction foregoing, and, in the case of its incorporation; and
(E) an opinion involuntary case or other proceeding, such involuntary case or other proceeding shall remain undismissed and unstayed for a period of counsel to 60 days, or an order for relief shall be entered against such Subsidiary under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect. Within 90 days after the Designated Subsidiary in form and substance satisfactory to the Lenders’ Counsel and the Administrative Agent, each acting reasonably;
(c) Celestica may, from time to time and at status of any time hereafter, designate any other wholly-owned Restricted Subsidiary which does not fall within the definition of “Canadian Designated Subsidiary” as a Consent Designated Subsidiary, provided that:
(i) all Lenders shall have previously consented in writing to the designation of such Subsidiary as a Consent Designated Subsidiary;
(ii) Celestica shall have obtained the agreement in writing of a Lender located in the jurisdiction where such Consent Designated Subsidiary is residentterminates pursuant to this subsection, such Subsidiary shall pay in full the unpaid principal of and interest on all outstanding Loans to utilize, subject to the terms of this Agreement, a portion of the Commitment of such Lender or its Affiliate to make Advances to the Consent Designated Subsidiary and such Lender shall have delivered a notice to the Administrative Agent in the form of Schedule M;
(iii) such Subsidiary, prior to becoming a Consent Designated Subsidiary, failing which Alcan shall have executed forthwith pay in full all such unpaid principal of and delivered to the Administrative Agent: (A) a Designated Subsidiary Agreement substantially in the form of Schedule F; (B) a Guarantee substantially in the form of Schedule H, with such changes as the Administrative Agent and the Consent Designated Subsidiary may reasonably require interest on the advice of their respective counsel to reflect local legal requirements; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Documents; and
(iv) the Restricted Subsidiary which is proposed to be designated as a Consent Designated Subsidiary shall have provided to the Administrative Agent such number of copies as the Administrative Agent may request of:
(A) a certified copy of the proposed Consent Designated Subsidiary’s Organic Documents;
(B) the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable, and to perform its obligations thereunder;
(C) a certificate to the incumbency of its officers signing the Consent Designated Subsidiary Agreement, the Guarantee and other applicable Security Documents, if applicable;
(D) a certificate of status, good standing or like certificate with respect to such Consent Designated Subsidiary issued by appropriate government officials of the jurisdiction of its incorporation; and
(E) an opinion of counsel to the Consent Designated Subsidiary in form and substance satisfactory to the Lenders’ Counsel and the Administrative Agent, each acting reasonably; and
(d) Celestica may, from time to time and at any time hereafter, terminate the designation of a Designated Subsidiary as such by the delivery of written notice to the Administrative Agent and from and after the day which is five (5) Banking Days after receipt all of such notice, the subject Subsidiary Subsidiary's outstanding Loans pursuant to Alcan's guarantee thereof set forth in Article 9. Nothing in this Section 2.18(c) shall no longer be a Designated Subsidiary and shall have no further right limit or ability to obtain further Advances otherwise affect Alcan's obligations under the FacilityArticle 9.
Appears in 1 contract
Samples: Credit Agreement (Alcan Inc)
Designated Subsidiaries. (a) The Administrative Agent and the Lenders acknowledge and agree and Celestica hereby confirms confirms: (i) that Celestica has designated Celestica International as a Canadian Designated Subsidiary and (ii) Celestica LLC as a U.S. Designated Subsidiary and that there are not, on the date hereof, any other Designated Subsidiaries.
(b) Celestica may, from time to time and at any time hereafter, designate any other wholly-owned qualifying Restricted Subsidiary as a Canadian Designated Subsidiary or a U.S. Designated Subsidiary provided that:
(i) all Lenders shall have previously consented in writing to the designation of such Subsidiary as a Canadian Designated Subsidiary;
(ii) in the case of (A) a Canadian Designated Subsidiary, such Subsidiary was incorporated, continued, amalgamated or otherwise created in accordance with and continues to be governed by the laws of a province of Canada or the federal laws of Canada and which is domiciled in Canada, and (B) a U.S. Designated Subsidiary, such Subsidiary was incorporated, amalgamated or otherwise created in accordance with and continues to be governed by the laws of a state in the United States of America and which is domiciled in the United States of America;
(iii) such Restricted Subsidiary, prior to becoming a Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) a Designated Subsidiary Agreement; (B) if it has not already done so, a Guarantee substantially in the form of Schedule H; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Documents; and
(iv) the Restricted Subsidiary which is proposed to become a Designated Subsidiary shall have delivered to the Administrative Agent:
(A) a certified copy of the proposed Designated Subsidiary’s Organic Documents;
(B) a certified copy of the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable, and to perform its obligations thereunder;
(C) a certificate as to the incumbency of its officers signing the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable;
(D) a certificate of status, good standing or like certificate with respect to such Designated Subsidiary issued by appropriate government officials of the jurisdiction of its incorporation; and
(E) an opinion of counsel to the Designated Subsidiary in form and substance satisfactory to the Lenders’ Counsel and the Administrative Agent, each acting reasonably;
(c) Celestica may, from time to time and at any time hereafter, concurrently with the delivery of the Officer’s Certificate pursuant to Section 9.1(a)(iii) and at any two other times per year, designate any other wholly-owned Restricted Subsidiary which does not fall within the definition of “Canadian Designated Subsidiary” or “U.S. Designated Subsidiary” as a Consent Designated Subsidiary, provided that:
(i) all Lenders shall have previously consented in writing to the designation of such Subsidiary as a Consent Designated Subsidiary;
(ii) if such Restricted Subsidiary is not domiciled in a jurisdiction previously designated as an Additional Jurisdiction hereunder, Celestica shall have obtained the agreement in writing of a Lender located in the jurisdiction where such Consent Designated Subsidiary is residentone or more Lenders, to utilize, subject to the terms of this Agreement, a portion of the Commitment of such Lender or its Affiliate Lenders to make Advances to in the Consent Designated jurisdiction in which such Restricted Subsidiary is domiciled and each such Lender shall have delivered a notice to the Administrative Agent in the form of Schedule MM setting out, among other things, the name of the Affiliate of the Lender (each a “Consent Lender”) that will make Advances available in the Restricted Subsidiary’s jurisdiction and the Commitment of the Affiliate to be available hereunder;
(iii) if such Restricted Subsidiary is not domiciled in a jurisdiction previously designated as an Additional Jurisdiction hereunder, Celestica shall have delivered a notice in the form of Schedule W to the Administrative Agent in which it confirms the Commitment of each Consent Lender and reallocates the Commitments of the Related Lenders of each Consent Lender; such that following the addition of the Consent Lender as a Lender hereunder, the aggregate Commitments of the Consent Lender and its Related Lenders (after giving effect to the addition of the Consent Lender as a Lender) shall be equal to the aggregate Commitments of the Related Lenders prior to the addition of the Consent Lender;
(iv) such Restricted Subsidiary, prior to becoming a Consent Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) a Designated Subsidiary Agreement substantially in the form of Schedule F; (B) if it has not already done so, a Guarantee substantially in the form of Schedule H, with such changes as the Administrative Agent and the Consent Designated Subsidiary may reasonably require on the advice of their respective counsel to reflect local legal requirements; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Documents, with such changes as the Administrative Agent and the Consent Designated Subsidiary may reasonably require on the advice of their respective counsel to reflect local legal requirements; and
(ivv) the Restricted Subsidiary which is proposed to be designated as a Consent Designated Subsidiary shall have provided to the Administrative Agent such number of copies as the Administrative Agent may request of:
(A) a certified copy of the proposed Consent Designated Subsidiary’s Organic Documents;
(B) the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable, and to perform its obligations thereunder;
(C) a certificate to the incumbency of its officers signing the Consent Designated Subsidiary Agreement, the Guarantee and other applicable Security Documents, if applicable;
(D) a certificate of status, good standing or like certificate with respect to such Consent Designated Subsidiary issued by appropriate government officials of the jurisdiction of its incorporation; and
(E) an opinion of counsel to the Consent Designated Subsidiary in form and substance satisfactory to the Lenders’ Counsel and the Administrative Agent, each acting reasonably; and
(d) If a notice(s) in the form of Schedule M has been delivered pursuant to Section 7.1(c)(ii) and the Restricted Subsidiary referred to therein is designated as a Consent Designated Subsidiary, each party hereto hereby irrevocably authorizes the Administrative Agent to:
(i) insert the name of each Consent Lender identified in such notice(s) on Schedule A (who shall thereafter be an Other Jurisdiction Lender hereunder) and identify on Schedule A the jurisdiction in which such Consent Lender shall make Advances hereunder (which shall thereafter be an Additional Jurisdiction hereunder);
(ii) amend Schedule B to set out the Commitment of each Consent Lender and the revised Commitment of its Related Lenders (as set out in the applicable notice delivered by Celestica pursuant to Section 7.1(c)(iii));
(iii) amend Schedule B to identify the maximum Commitment of each Consent Lender, which shall be equal to the Consent Lender’s initial Commitment; and
(iv) affix an execution page to this Agreement which has been executed and delivered by each Consent Lender.
(e) Celestica may, from time to time, in conjunction with the delivery of the Officer’s Certificate pursuant to Section 2.3(g)(i) or the notice pursuant to Section 2.3(g)(iii), obtain the agreement of an Other Jurisdiction Lender and its Related Lenders to increase the maximum Commitment of the Other Jurisdiction Lender set out in Schedule B, which agreement shall be evidenced by the delivery by such Other Jurisdiction Lender and its Related Lenders to the Administrative Agent of a notice in the form of Schedule X. Upon receipt of such notice, each party hereto irrevocably authorizes the Administrative Agent to amend Schedule B to identify the revised maximum Commitment of such Other Jurisdiction Lender.
(f) Celestica may, from time to time, in conjunction with the delivery of the Officer’s Certificate pursuant to Section 2.3(g)(i) or the notice pursuant to Section 2.3(g)(iii), obtain the agreement of one or more Lenders, to utilize, subject to the terms of this Agreement, a portion of the Commitment of such Lender(s) to make Advances in an Additional Jurisdiction, which agreement shall be evidenced by the delivery by each such Lender of a notice in the form of Schedule Y setting out, among other things, the name of the Affiliate of the Lender that will make Advances available in the Additional Jurisdiction and the Commitment of the Affiliate to be available hereunder. In conjunction with the delivery of such notice, Celestica shall deliver a notice in the form of Schedule Z to the Administrative Agent in which it confirms the Commitment of each such Affiliate and reallocates the Commitments of the Related Lenders of each Affiliate; such that following the addition of each Affiliate as a Lender hereunder, the aggregate Commitments of each Affiliate and its Related Lenders (after giving effect to the addition of the Affiliate as a Lender) shall be equal to the aggregate Commitments of the Related Lenders prior to the addition of the Affiliate. Upon receipt of such notices, each party hereto hereby irrevocably authorizes the Administrative Agent to:
(i) insert the name of each Affiliate identified in such notice(s) on Schedule A (who shall thereafter be an Other Jurisdiction Lender hereunder) and identify on Schedule A the Additional Jurisdiction in which such Affiliate shall make Advances hereunder;
(ii) amend Schedule B to set out the Commitment of each Affiliate and the revised Commitment of its Related Lenders (as set out in the applicable notice delivered by Celestica);
(iii) amend Schedule B to identify the maximum Commitment of each Affiliate, which shall be equal to the Affiliate’s initial Commitment; and
(iv) affix an execution page to this Agreement which has been executed and delivered by each Affiliate.
(g) Celestica may, from time to time and at any time hereafter, terminate the designation of a Designated Subsidiary as such by the delivery of written notice to the Administrative Agent and from and after the day which is five (5) Banking Days after receipt of such notice, the subject Subsidiary shall no longer be a Designated Subsidiary and shall have no further right or ability to obtain further Advances under the Facility.
Appears in 1 contract
Designated Subsidiaries. (a) The Administrative Agent and the Lenders acknowledge and agree and Celestica hereby confirms that Celestica has designated Celestica International as a Canadian Designated Subsidiary and that there are not, on the date hereof, any other Designated Subsidiaries.
(b) Celestica may, from time to time and at any time hereafter, designate any other wholly-owned qualifying Restricted Subsidiary as a Canadian Designated Subsidiary provided that:
(i) all Lenders shall have previously consented in writing to the designation of such Subsidiary as a Canadian Designated Subsidiary;
(ii) such Subsidiary was incorporated, continued, amalgamated or otherwise created in accordance with and continues to be governed by the laws of a province of Canada or the federal laws of Canada and which is domiciled in Canada;
(iii) such Restricted Subsidiary, prior to becoming a Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) Agent a Designated Subsidiary Agreement; (B) Agreement and, if it has not already done so, a Guarantee substantially in the form of Schedule H; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Documents; and
(iv) the Restricted Subsidiary which is proposed to become a Designated Subsidiary shall have delivered to the Administrative Agent:
(A) a certified copy of the proposed Designated Subsidiary’s 's Organic Documents;
(B) a certified copy of the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee Agreement and the other applicable Security DocumentsGuarantee, if applicable, and to perform its obligations thereunder;
(C) a certificate as to the incumbency of its officers signing the Designated Subsidiary Agreement, the Guarantee Agreement and the other applicable Security DocumentsGuarantee, if applicable;,
(D) a certificate of status, good standing or like certificate with respect to such Designated Subsidiary issued by appropriate government officials of the jurisdiction of its incorporation; and
(E) an opinion of counsel to the Designated Subsidiary in form and substance of Schedule O with only those changes which are reasonably satisfactory to the Lenders’ ' Counsel and counsel to the Administrative Agent, each acting reasonablyDesignated Subsidiary;
(c) Celestica may, from time to time and at any time hereafter, designate any other wholly-owned Restricted Subsidiary which does not fall within the definition of “"Canadian Designated Subsidiary” " as a Consent Designated Subsidiary, provided that:
(i) all Lenders shall have previously consented in writing to the designation of such Subsidiary as a Consent Designated Subsidiary;
(ii) Celestica shall have obtained the agreement in writing of a Lender located in the jurisdiction where such Consent Designated Subsidiary is resident, to utilize, subject to the terms of this Agreement, a portion of the Commitment of such Lender or its Affiliate to make Advances to the Consent Designated Subsidiary and such Lender shall have delivered a notice to the Administrative Agent in the form of Schedule M;
(iii) such Subsidiary, prior to becoming a Consent Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) Agent a Designated Subsidiary Agreement substantially in the form of Schedule F; (B) F and a Guarantee substantially in the form of Schedule H, with such changes as the Administrative Agent and the Consent Designated Subsidiary may reasonably require on the advice of their respective counsel to reflect local legal requirements; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Documents; and
(iv) the Restricted Subsidiary which is proposed to be designated as a Consent Designated Subsidiary shall have provided to the Administrative Agent such number of copies as the Administrative Agent may request of:
(A) a certified copy of the proposed Consent Designated Subsidiary’s 's Organic Documents;
(B) the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee Agreement and the other applicable Security DocumentsGuarantee, if applicable, and to perform its obligations thereunder;
(C) a certificate to the incumbency of its officers signing the Consent Designated Subsidiary Agreement, Agreement and the Guarantee and other applicable Security DocumentsGuarantee, if applicable;
(D) a certificate of status, good standing or like certificate with respect to such Consent Designated Subsidiary issued by appropriate government officials of the jurisdiction of its incorporation; and
(E) an opinion of counsel to the Consent Designated Subsidiary in the form and substance of Schedule O with only those changes which are reasonably satisfactory to the Lenders’ ' Counsel and counsel to the Administrative Agent, each acting reasonablyConsent Designated Subsidiary; and
(d) Celestica may, from time to time and at any time hereafter, terminate the designation of a Designated Subsidiary as such by the delivery of written notice to the Administrative Agent and from and after the day which is five (5) Banking Days after receipt of such notice, the subject Subsidiary shall no longer be a Designated Subsidiary and shall have no further right or ability to obtain further Advances under the Facility.
Appears in 1 contract
Designated Subsidiaries. (a) The Administrative Agent and At any time after March 1, 2003, the Lenders acknowledge and agree and Celestica hereby confirms that Celestica has designated Celestica International Company may designate any Restricted Subsidiary other than (i) Brooke Holding, (ii) Liggett or any Subsidiary of Liggett or (iii) Brands or any Xxxxxxiary of Brands as a Canadian Designated Dexxxxxxxd Subsidiary and that there are not, on the date hereof, any other Designated Subsidiaries.
(b) Celestica may, from time to time and at any time hereafter, designate any other wholly-owned qualifying Restricted Subsidiary as a Canadian Designated Subsidiary provided thatso long as:
(i) all Lenders shall have previously consented in writing to the designation of such Subsidiary as a Canadian Designated Subsidiary;
(ii1) such Designated Subsidiary was incorporated, continued, amalgamated or otherwise created in accordance has earned negative EBITDA for the most recently ended Reference Period for which financial statements are available with and continues "EBITDA" to be governed by the laws of a province of Canada or the federal laws of Canada and which is domiciled in Canada;
(iii) such Restricted Subsidiary, prior to becoming a Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) a Designated Subsidiary Agreement; (B) if it has not already done so, a Guarantee substantially in the form of Schedule H; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Documents; and
(iv) the Restricted Subsidiary which is proposed to become a Designated Subsidiary shall have delivered to the Administrative Agent:
(A) a certified copy of the proposed Designated Subsidiary’s Organic Documents;
(B) a certified copy of the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable, and to perform its obligations thereunder;
(C) a certificate as to the incumbency of its officers signing the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable;
(D) a certificate of status, good standing or like certificate calculated with respect to such Designated Subsidiary issued by appropriate government officials of and its Subsidiaries as "Consolidated EBITDA" is calculated for the jurisdiction of Company and its incorporationRestricted Subsidiaries; and
(E2) neither such Designated Subsidiary nor any of its Subsidiaries owns, either on the date of designation or at any time thereafter, any Capital Stock or Indebtedness of or have any Investment in, or own or hold any Lien on any property of, the Company or any other Subsidiary of the Company which is not a Subsidiary of such Designated Subsidiary or otherwise an opinion of counsel Unrestricted Subsidiary or Designated Subsidiary.
(b) Prior to the effectiveness of any Restricted Subsidiary's designation as a Designated Subsidiary Subsidiary, the Company shall deliver an Officer's Certificate to the Majority Holders certifying that the conditions set forth in Section 22.11(a) to be satisfied as of the date of designation have been satisfied. Such Officers' Certificate shall include calculations with respect to the condition set forth in Section 22.11(a)(1) in form and substance reasonably satisfactory to the Lenders’ Counsel and the Administrative Agent, each acting reasonably;Majority Holders.
(c) Celestica mayUpon any Designated Subsidiary's designation as such, from time all Subsidiaries of such Designated Subsidiary shall be deemed Designated Subsidiaries.
(d) If a Designated Subsidiary is a party to time the Master Settlement Agreement and at has an MSA Market Share Exemption greater than zero, then such Designated Subsidiary must engage in a Related Business and use commercially reasonable efforts to achieve and maintain a Market Share equal to or in excess of its MSA Market Share Exemption. The Company and any time hereafter, designate any other wholly-owned Restricted Subsidiary which does not fall within may make payments, transfer assets and provide services to such Designated Subsidiary to the definition extent necessary to enable such Designated Subsidiary to comply with the foregoing sentence so long as the amount of “Canadian consideration received by the Company or such Restricted Subsidiary is equal to the amount of payments made to such Designated Subsidiary or the actual cost of assets transferred or services provided to such Designated Subsidiary” as . True and complete copies of all contracts, agreements and arrangements or invoices evidencing any transaction in excess of $500,000 between such Designated Subsidiary and the Company or a Consent Restricted Subsidiary shall be delivered to the Majority Holders.
(e) At all times after designation of a Designated Subsidiary, provided thatthe Company shall not permit such Designated Subsidiary or any of its Subsidiaries to incur any Indebtedness other than Indebtedness owed to Vector as to which in each case:
(i1) all Lenders shall have previously consented in writing to neither the designation Company nor any Restricted Subsidiary (a) provides any guarantee or credit support of such Subsidiary any kind (including any undertaking, guarantee, indemnity, agreement or instrument that would constitute Indebtedness) or (b) is directly or indirectly liable (as a Consent Designated Subsidiaryguarantor or otherwise);
(ii2) Celestica shall have obtained no default with respect to which would permit (upon notice, lapse of time or both) any holder of any other Indebtedness of the agreement in writing of Company (other than the Notes) or any Restricted Subsidiary to declare a Lender located in default under such other Indebtedness or cause the jurisdiction where such Consent Designated Subsidiary is resident, payment thereof to utilize, subject be accelerated or payable prior to its stated maturity;
(3) the terms of this Agreement, a portion which result in there being no recourse against any of the Commitment assets of such Lender the Company or its Affiliate to make Advances to the Consent Designated Subsidiary and such Lender shall have delivered a notice to the Administrative Agent in the form of Schedule M;
(iii) such Subsidiary, prior to becoming a Consent Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) a Designated Subsidiary Agreement substantially in the form of Schedule F; (B) a Guarantee substantially in the form of Schedule H, with such changes as the Administrative Agent and the Consent Designated Subsidiary may reasonably require on the advice of their respective counsel to reflect local legal requirements; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security DocumentsRestricted Subsidiaries; and
(iv4) the Restricted Subsidiary which is proposed to be designated as a Consent Designated Subsidiary shall have provided to the Administrative Agent such number of copies as the Administrative Agent may request of:
(A) a certified copy of the proposed Consent Designated Subsidiary’s Organic Documents;
(B) the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable, and to perform its obligations thereunder;
(C) a certificate to the incumbency of its officers signing the Consent Designated Subsidiary Agreement, the Guarantee and other applicable Security Documents, if applicable;
(D) a certificate of status, good standing or like certificate with respect to such Consent Designated Subsidiary issued by appropriate government officials of the jurisdiction of its incorporation; and
(E) an opinion of counsel to the Consent Designated Subsidiary contractually subordinated in form and substance reasonably satisfactory to the Lenders’ Counsel and Majority Holders to any Indebtedness owed by such Designated Subsidiary to the Administrative Agent, each acting reasonably; andCompany or any Restricted Subsidiary.
(df) Celestica mayAll Designated Subsidiaries shall be deemed Restricted Subsidiaries for purposes of (i) subject to Section 8.4(a)(1), from time calculation of Consolidated Net Income, Consolidated EBITDA, Consolidated Income Taxes, Consolidated Interest Expense and Leverage Ratio and (ii) Sections 8.16, 8.18, 8.20, 8.26, 8.29, 8.30, 11 and 13.11.
y. Schedule A. Schedule A of the Note Purchase Agreement is hereby amended by adding Schedule A to time this Amendment and at any time hereafterPurchase Agreement.
z. Schedule B. Schedule B of the Note Purchase Agreement is hereby amended by
i. with respect to each Holder party to this Amendment and Purchase Agreement and its successors, terminate deleting the designation definitions of a Designated Subsidiary "Accreted Value" and "Accreted Value Premium" in their entirety;
ii. amending the following definitions in their entirety to read as such by the delivery of written notice to the Administrative Agent and from and after the day which is five (5) Banking Days after receipt of such notice, the subject Subsidiary shall no longer be a Designated Subsidiary and shall have no further right or ability to obtain further Advances under the Facility.follows:
Appears in 1 contract
Designated Subsidiaries. Notwithstanding the provisions of ----------------------- paragraph (a) The Administrative Agent and above, the Lenders acknowledge and agree and Celestica hereby confirms that Celestica has designated Celestica International as a Canadian Designated Subsidiary and that there are not, on the date hereof, any other Designated Subsidiaries.
(b) Celestica may, from time to time and Borrower may at any time hereafter, after the date hereof designate any Subsidiary (other wholly-owned qualifying Restricted than a Subsidiary holding any Station Licenses or the operating assets of any Stations) as a Canadian Designated Subsidiary provided that:
(i) all Lenders shall have previously consented in writing to the designation of such Subsidiary as a Canadian "Designated Subsidiary;
(ii) such Subsidiary was incorporated" for purposes of this Agreement, continued, amalgamated or otherwise created in accordance with and continues to be governed by the laws of a province of Canada or the federal laws of Canada and which is domiciled in Canada;
(iii) such Restricted Subsidiary, prior to becoming a Designated Subsidiary, shall have executed and delivered delivering to the Administrative Agent: Agent a certificate of a senior officer of the Borrower (Aand the Administrative Agent shall promptly deliver a copy thereof to each Lender following receipt) identifying such Subsidiary, stating that such Subsidiary shall be treated as a "Designated Subsidiary" for all purposes hereof and certifying that, after giving effect to such designation, the Borrower will be in compliance with the provisions of this Agreement applicable to such Designated Subsidiary Agreement; (Bincluding the provisions of Section 7.05(f) if it has not already done so, a Guarantee substantially with respect to the type of business in the form of Schedule H; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Documents; and
(iv) the Restricted Subsidiary which is proposed to become a Designated Subsidiary shall have delivered be involved and the limitations upon the aggregate amount of Investments in Designated Subsidiaries therein specified), and such designation will not result in a Default hereunder. In the event of any such designation of a Subsidiary that is at the time a Subsidiary Guarantor hereunder, the Administrative Agent agrees (to the extent such designation complies with the requirements of the immediately preceding sentence) to release such Subsidiary from its Guarantee hereunder, and in that connection to execute and deliver (at the expense of the Borrower) such instruments as the Borrower shall reasonably request to effect such release. Any Subsidiary of a Designated Subsidiary shall be deemed to be a "Designated Subsidiary". The Borrower may at any time rescind the designation of any Subsidiary as a "Designated Subsidiary" for purposes of this Agreement, by delivering to the Administrative Agent:
Agent (A) which shall promptly forward a certified copy of the proposed Designated Subsidiary’s Organic Documents;
(B) a certified copy of the resolutions authorizing it thereof to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable, and to perform its obligations thereunder;
(C) a certificate as to the incumbency of its officers signing the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable;
(Deach Lender) a certificate of status, good standing or like certificate with respect to such Designated Subsidiary issued by appropriate government officials of the jurisdiction of its incorporation; and
(E) an opinion of counsel to the Designated Subsidiary in form and substance satisfactory to the Lenders’ Counsel and the Administrative Agent, each acting reasonably;
(c) Celestica may, from time to time and at any time hereafter, designate any other wholly-owned Restricted Subsidiary which does not fall within the definition of “Canadian Designated Subsidiary” as a Consent Designated Subsidiary, provided that:
(i) all Lenders shall have previously consented in writing to the designation of such Subsidiary as a Consent Designated Subsidiary;
(ii) Celestica shall have obtained the agreement in writing of a Lender located in the jurisdiction where such Consent Designated Subsidiary is resident, to utilize, subject to the terms of this Agreement, a portion of the Commitment of such Lender or its Affiliate to make Advances to the Consent Designated Subsidiary and such Lender shall have delivered a notice to the Administrative Agent in the form of Schedule M;
(iii) Financial Officer identifying such Subsidiary, prior to becoming a Consent Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) a Designated Subsidiary Agreement substantially in the form of Schedule F; (B) a Guarantee substantially in the form of Schedule H, with stating that such changes as the Administrative Agent and the Consent Designated Subsidiary may reasonably require on the advice of their respective counsel to reflect local legal requirements; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Documents; and
(iv) the Restricted Subsidiary which is proposed to be designated as a Consent Designated Subsidiary shall have provided to the Administrative Agent such number of copies as the Administrative Agent may request of:
(A) a certified copy of the proposed Consent Designated Subsidiary’s Organic Documents;
(B) the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable, and to perform its obligations thereunder;
(C) a certificate to the incumbency of its officers signing the Consent Designated Subsidiary Agreement, the Guarantee and other applicable Security Documents, if applicable;
(D) a certificate of status, good standing or like certificate with respect to such Consent Designated Subsidiary issued by appropriate government officials of the jurisdiction of its incorporation; and
(E) an opinion of counsel to the Consent Designated Subsidiary in form and substance satisfactory to the Lenders’ Counsel and the Administrative Agent, each acting reasonably; and
(d) Celestica may, from time to time and at any time hereafter, terminate the designation of a Designated Subsidiary as such by the delivery of written notice to the Administrative Agent and from and after the day which is five (5) Banking Days after receipt of such notice, the subject Subsidiary shall no longer be treated as a "Designated Subsidiary Subsidiary" for purposes hereof and shall have no further right or ability certifying that, after giving effect to obtain further Advances under such rescission, the FacilityBorrower will be in compliance with the provisions of this Agreement applicable to Consolidated Subsidiaries (and, without limiting the generality of the foregoing, upon such rescission and as a condition thereto, the Borrower agrees to comply with the requirements of paragraph (c) below with respect to such Subsidiary).
Appears in 1 contract
Designated Subsidiaries. (a) Xxxx xxx, from time to time by delivery to the Administrative Agent of a written notice, request to designate one or more of its direct or indirect wholly-owned Subsidiaries (other than a Subsidiary that previously was designated as a Revolving Credit Borrower but ceased to be a Revolving Credit Borrower pursuant to a resignation effected under paragraph (c) below) as a “Designated Subsidiary” for purposes of this Agreement and to have such Subsidiary have all of the rights and obligations of a Revolving Credit Borrower hereunder (a “Revolving Credit Borrower Designation”). The Administrative Agent shall promptly notify the Collateral Agent and each Revolving Credit Lender, Issuing Bank and Swing Line Lender of each Revolving Credit Borrower Designation by Xxxx and the identity of the respective Subsidiary. Each Revolving Credit Lender, Issuing Bank and Swing Line Lender shall notify the Administrative Agent, not later than 11:00 A.M. (New York City time), ten Business Days after receipt of such request (or such shorter period as the Administrative Agent may agree) whether it consents (such consent not to be unreasonably withheld or delayed) to such Revolving Credit Borrower Designation. Any failure by a Revolving Credit Lender, Issuing Bank or Swing Line Lender to respond to such request within the time period specified in the preceding sentence shall be deemed to be a refusal by such Person to consent to such Revolving Credit Borrower Designation. If the Administrative Agent and all the Revolving Credit Lenders, Issuing Banks and Swing Line Lenders acknowledge consent to such Revolving Credit Borrower Designation and agree if the requirements described in paragraph (b) below are satisfied or waived, the Administrative Agent shall so notify the Collateral Agent and Celestica hereby confirms that Celestica has designated Celestica International the Revolving Credit Borrowers 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 Canadian Designated Subsidiary and that there are not, on the date hereof, any other Designated SubsidiariesRevolving Credit Borrower hereunder.
(b) Celestica may, from time to time and at Following any time hereafter, designate any other wholly-owned qualifying Restricted Subsidiary as request by Xxxx for a Canadian Revolving Credit Borrower Designation of a Designated Subsidiary provided thatpursuant to this Section 9.15:
(i) all Lenders shall have previously consented if such Revolving Credit Borrower Designation obligates any Agent or any Revolving Credit Lender, Issuing Bank or Swing Line Lender to comply with “know your customer”, Beneficial Ownership Regulation or other identification procedures in writing circumstances where the necessary information is not already available to it, Xxxx shall, promptly upon the designation request of any Agent, Revolving Credit Lender, Issuing Bank or Swing Line Lender, supply such Subsidiary documentation and other evidence as a Canadian Designated Subsidiaryis reasonably requested by such Agent, Revolving Credit Lender, Issuing Bank or Swing Line Lender;
(ii) if such Designated Subsidiary was incorporatedis a Domestic Subsidiary but not a Material Subsidiary, continued, amalgamated or otherwise created in accordance it shall (and Xxxx shall cause it to) comply with and continues to be governed by the laws requirements of Section 5.01(i) as if it became a province domestic Material Subsidiary for the purposes thereof on the date of Canada or the federal laws of Canada and which is domiciled in CanadaDana’s request for such Revolving Credit Borrower Designation;
(iii) such Restricted Subsidiary, prior to becoming a Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) a Designated Subsidiary shall (and Xxxx shall cause it to) enter into a Designation Agreement; (B) if it has not already done so, a Guarantee substantially in the form of Schedule H; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Documents; and
(iv) the Restricted Subsidiary which is proposed to become a such Designated Subsidiary shall have delivered (and Xxxx shall cause it to) deliver to the Administrative Agent:
(A) a certified copy copies of the proposed resolutions of the boards of directors (or the equivalent) of such Designated Subsidiary’s Organic DocumentsSubsidiary approving the execution and delivery of the documents described in clause (ii) or (iii) above, as applicable, to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to such documents;
(B) a certified copy of the resolutions authorizing it to enter into, execute and deliver the charter or other constitutive document of such Designated Subsidiary Agreementand each amendment thereto, certified (as of a date reasonably acceptable to the Guarantee Administrative Agent) by the Secretary of State (or the equivalent) of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and the other applicable Security Documents, if applicable, and to perform its obligations thereundercomplete copy thereof;
(C) a certificate of such Designated Subsidiary signed on behalf of such Designated Subsidiary by a Responsible Officer, certifying as to (I) the incumbency accuracy and completeness of its officers signing the charter (or other applicable formation document) of such Designated Subsidiary Agreement, the Guarantee and the absence of any changes thereto; (II) the accuracy and completeness of the bylaws (or other applicable Security Documentsorganizational document) of such Designated Subsidiary as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in clause (A) above were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (III) the absence of any proceeding known to be pending for the dissolution, if applicableliquidation or other termination of the existence of such Designated Subsidiary; and (IV) the accuracy in all material respects of the representations and warranties made by such Designated Subsidiary in the Loan Documents to which it is or is to be a party;
(D) a certificate of status, good standing the Secretary or like certificate with respect to an Assistant Secretary (or the equivalent) of such Designated Subsidiary issued by appropriate government officials certifying the names and true signatures of the jurisdiction officers of its incorporationsuch Designated Subsidiary authorized to sign the documents to be delivered under this Section 9.15(b); and
(E) an opinion favorable and customary opinions of counsel to the Designated Subsidiary in form and substance satisfactory to the Lenders’ Counsel and the Administrative Agent, each acting reasonably;
(c) Celestica may, from time to time and at any time hereafter, designate any other wholly-owned Restricted Subsidiary which does not fall within the definition of “Canadian Designated Subsidiary” as a Consent Designated Subsidiary, provided that:
(i) all Lenders shall have previously consented in writing to the designation of Loan Parties addressing such Subsidiary as a Consent Designated Subsidiary;
(ii) Celestica shall have obtained the agreement in writing of a Lender located in the jurisdiction where such Consent Designated Subsidiary is resident, to utilize, subject to the terms of this Agreement, a portion of the Commitment of such Lender or its Affiliate to make Advances to the Consent Designated Subsidiary and such Lender shall have delivered a notice to the Administrative Agent in the form of Schedule M;
(iii) such Subsidiary, prior to becoming a Consent Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) a Designated Subsidiary Agreement substantially in the form of Schedule F; (B) a Guarantee substantially in the form of Schedule H, with such changes as the Administrative Agent and the Consent Designated Subsidiary may reasonably require on the advice of their respective counsel to reflect local legal requirements; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Documents; and
(iv) the Restricted Subsidiary which is proposed to be designated as a Consent Designated Subsidiary shall have provided to the Administrative Agent such number of copies matters as the Administrative Agent may request of:reasonably request, including in respect of the documents to be delivered under this Section 9.15(b).
(Ac) A Borrower joined pursuant to Section 9.15 or any other Revolving Credit Borrower (other than Xxxx) may elect to resign as a certified copy Borrower; provided that: (i) no Default or Event of Default is continuing or would result from the resignation of such Borrower, (ii) such resigning Borrower has delivered to the Administrative Agent a notice of resignation at least ten Business Days (or such shorter period as the Administrative Agent may agree in its sole election) prior to the proposed resignation and (iii) on or before the date of the proposed Consent Designated Subsidiary’s Organic Documents;
resignation of such Borrower, such Borrower shall have either (Bx) the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable, and to perform its obligations thereunder;
(C) a certificate to the incumbency paid in full all of its officers signing Obligations under the Consent Designated Subsidiary Agreement, the Guarantee and Loan Documents to which it is a party (other applicable Security Documents, if applicable;
than its Guaranteed Obligations) or (Dy) a certificate of status, good standing or like certificate with respect to such Consent Designated Subsidiary issued by appropriate government officials of the jurisdiction assigned all of its incorporation; and
Obligations under the Loan Documents to which it is a party (Eother than its Guaranteed Obligations) to another Revolving Credit Borrower (including Xxxx) pursuant to an opinion of counsel to the Consent Designated Subsidiary assignment and assumption agreement that is in form and substance reasonably satisfactory to the Lenders’ Counsel and the Administrative Agent, each acting reasonably; and
(d) Celestica may, from time to time and at any time hereafter, terminate . Upon satisfaction of the designation of a Designated Subsidiary as such by requirements in the delivery of written notice to the Administrative Agent and from and after the day which is five (5) Banking Days after receipt of such noticeforegoing sentence, the subject Subsidiary resigning Borrower shall no longer be a Designated Subsidiary and shall have no further right or ability to obtain further Advances under the Facility.cease to
Appears in 1 contract
Designated Subsidiaries. (a) The Administrative Agent and the Lenders acknowledge and agree and Celestica hereby confirms that Celestica has designated made the following designations, which Celestica hereby confirms:
(i) Celestica International as a Canadian Designated Subsidiary Subsidiary;
(ii) Celestica Corp. as a U.S. Designated Subsidiary;
(iii) Celestica U.S. as a U.S. Designated Subsidiary; and
(iv) Celestica Limited as a U.K. Designated Subsidiary; and that there are notthe Agents, on behalf of the date hereof, any other Designated SubsidiariesLenders acknowledge and agree to such designations.
(b) Celestica may, from time to time and at any time hereafter, designate any other wholly-owned qualifying Restricted Subsidiary as a Canadian Designated Subsidiary, U.S. Designated Subsidiary or a U.K. Designated Subsidiary provided that:
(i) all Lenders shall have previously consented in writing to the designation of such Subsidiary as a Canadian Designated Subsidiary;
(ii) such Subsidiary was incorporated, continued, amalgamated or otherwise created in accordance with and continues to be governed by the laws of a province of Canada or the federal laws of Canada and which is domiciled in Canada;
(iii) such Restricted Subsidiary, prior to becoming a Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) Agent a Designated Subsidiary Agreement; (B) Agreement and, if it has not already done so, a Guarantee substantially in the form of Schedule H; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security DocumentsJ; and
(ivii) the Restricted Subsidiary which is proposed to become a Designated Subsidiary shall have delivered to the Administrative Agent:
(A) a certified copy of the proposed Designated Subsidiary’s 's Organic Documents;
(B) a certified copy of the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee Agreement and the other applicable Security DocumentsGuarantee, if applicable, and to perform its obligations thereunder;
(C) a certificate as to the incumbency of its officers signing the Designated Subsidiary Agreement, the Guarantee Agreement and the other applicable Security DocumentsGuarantee, if applicable;,
(D) a certificate of status, good standing or like certificate with respect to such Designated Subsidiary issued by appropriate government officials of the jurisdiction of its incorporation; and
(E) an opinion of counsel to the Designated Subsidiary in form and substance of Schedule Q with only those changes which are reasonably satisfactory to the Lenders’ ' Counsel and counsel to the Administrative Agent, each acting reasonablyDesignated Subsidiary;
(c) Celestica may, from time to time and at any time hereafter, designate any other wholly-owned Restricted Subsidiary which does not fall within the definition definitions of “"Canadian Designated Subsidiary” ", "U.S. Designated Subsidiary" or "U.K. Designated Subsidiary" as a Consent Designated Subsidiary, provided that:
(i) all Lenders shall have previously consented in writing to the designation of such Subsidiary as a Consent Designated Subsidiary;
(ii) Celestica shall have obtained the agreement in writing of a Lender located in the jurisdiction where such Consent Designated Subsidiary is resident, to utilize, subject to the terms of this Agreement, a portion of the Commitment of such Lender or its Affiliate to make Advances to the Consent Designated Subsidiary and such Lender shall have delivered a notice to the Administrative Agent in the form of Schedule M;
(iii) such Subsidiary, prior to becoming a Consent Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) a Designated Subsidiary Agreement substantially in the form of Schedule F; (B) a Guarantee substantially in the form of Schedule H, with such changes as the Administrative Agent and the Consent Designated Subsidiary may reasonably require on the advice of their respective counsel to reflect local legal requirements; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Documents; and
(iv) the Restricted Subsidiary which is proposed to be designated as a Consent Designated Subsidiary shall have provided to the Administrative Agent such number of copies as the Administrative Agent may request of:
(A) a certified copy of the proposed Consent Designated Subsidiary’s Organic Documents;
(B) the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable, and to perform its obligations thereunder;
(C) a certificate to the incumbency of its officers signing the Consent Designated Subsidiary Agreement, the Guarantee and other applicable Security Documents, if applicable;
(D) a certificate of status, good standing or like certificate with respect to such Consent Designated Subsidiary issued by appropriate government officials of the jurisdiction of its incorporation; and
(E) an opinion of counsel to the Consent Designated Subsidiary in form and substance satisfactory to the Lenders’ Counsel and the Administrative Agent, each acting reasonably; and
(d) Celestica may, from time to time and at any time hereafter, terminate the designation of a Designated Subsidiary as such by the delivery of written notice to the Administrative Agent and from and after the day which is five (5) Banking Days after receipt of such notice, the subject Subsidiary shall no longer be a Designated Subsidiary and shall have no further right or ability to obtain further Advances under the Facility.
Appears in 1 contract
Designated Subsidiaries. (a) The Administrative Agent GWI may at any time and the Lenders acknowledge and agree and Celestica hereby confirms that Celestica has designated Celestica International as a Canadian Designated Subsidiary and that there are not, on the date hereof, any other Designated Subsidiaries.
(b) Celestica may, from time to time and at any time hereafter, designate any Subsidiary (other wholly-owned qualifying Restricted Subsidiary than the Aus JV and its Subsidiaries) as a Canadian Designated Subsidiary provided that:
(ieach such designation a “Designation”) all Lenders shall have previously consented in writing by delivering an Election to the designation of such Subsidiary as a Canadian Designated Subsidiary;
(ii) such Subsidiary was incorporated, continued, amalgamated or otherwise created in accordance with and continues to be governed by the laws of a province of Canada or the federal laws of Canada and which is domiciled in Canada;
(iii) such Restricted Subsidiary, prior to becoming a Designated Subsidiary, shall have executed and delivered Participate to the Administrative Agent. Each such Election to Participate shall indicate (x) whether such Designated Subsidiary intends to (1) borrow Term Loans pursuant to the provisions of §6.18 or (2) establish Revolving Loan Commitments pursuant to the provisions of §6.18 or (3) otherwise establish Designated Subsidiary Commitments to such Designated Subsidiary, which shall be offset by a corresponding and equivalent reduction as designated by GWI in one or more of the Aggregate Canadian Revolving Loan Commitments, Aggregate European Commitments, Aggregate UK Revolving Loan Commitments and Aggregate Other Designated Subsidiary Commitments such that the Total Commitment in effect immediately before such Designation shall be equal to the Total Commitment immediately after, and after giving effect to, such Designation (including after giving effect to any increase of commitments pursuant to §6.18 entered into in connection with such Designation) (each such adjustment pursuant to this §6.23(a), a “Commitment Adjustment”); provided that each such Commitment Adjustment pursuant to a Designation shall be subject to the following conditions: (i) reallocation of Applicable Commitment amounts shall be made only between the offices or Affiliates of Applicable Lenders such that the sum of all the applicable Commitments of each Applicable Lender and its Affiliates shall not be increased or decreased as a result of any such reallocation, (ii) no Designation shall increase the Aggregate Foreign Currency Revolving Loan Commitments in excess of $500,000,000, (iii) the total Designated Subsidiary Commitments and Term Loans to a Designated Subsidiary shall not exceed $75,000,000, (iv) each reallocation shall be made pro rata among the Lenders whose Applicable Commitments are being reallocated from one Applicable Commitment to another, but shall not cause the Applicable Commitments of any other Lenders to change (but will result in a change in Commitment Percentages), (v) in no event shall (A) a Designated Subsidiary Agreementthe Aggregate Domestic Revolving Loan Commitments be reduced to an amount less than the greater of (x) $125,000,000 and (y) the Total Domestic Revolver Exposure; (B) if it has not already done so, a Guarantee substantially in the form of Schedule HAggregate Canadian Revolving Loan Commitments be reduced to an amount less than the Total Canadian Revolver Exposure; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security DocumentsAggregate European Commitments be reduced to an amount less than the Total European Exposure; and
(iv) the Restricted Subsidiary which is proposed to become a Designated Subsidiary shall have delivered to the Administrative Agent:
(A) a certified copy of the proposed Designated Subsidiary’s Organic Documents;
(B) a certified copy of the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable, and to perform its obligations thereunder;
(C) a certificate as to the incumbency of its officers signing the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable;
(D) a certificate of status, good standing [Reserved]; or like certificate with respect to such Designated Subsidiary issued by appropriate government officials of the jurisdiction of its incorporation; and
(E) the Aggregate UK Revolving Loan Commitments be reduced to an opinion of counsel amount less than the Total UK Revolver Exposure and (y) shall indicate the currencies the Loans to be made to the Designated Subsidiary in form and substance satisfactory shall be denominated (such currency, a “Designated Subsidiary Alternative Currency”); provided that such currencies shall be an Alternative Currency. Each such Election to the Lenders’ Counsel and the Administrative Agent, each acting reasonably;
(c) Celestica may, from time to time and at any time hereafter, designate any other wholly-owned Restricted Subsidiary which does not fall within the definition of “Canadian Designated Subsidiary” as a Consent Designated Subsidiary, provided that:
(i) all Lenders Participate shall have previously consented in writing to the designation be duly executed on behalf of such Subsidiary as a Consent Designated Subsidiary;
(ii) Celestica shall have obtained the agreement and GWI in writing of a Lender located in the jurisdiction where such Consent Designated Subsidiary is resident, to utilize, subject to the terms of this Agreement, a portion of the Commitment of such Lender or its Affiliate to make Advances to the Consent Designated Subsidiary and such Lender shall have delivered a notice to the Administrative Agent in the form of Schedule M;
(iii) such Subsidiary, prior to becoming a Consent Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) a Designated Subsidiary Agreement substantially in the form of Schedule F; (B) a Guarantee substantially in the form of Schedule H, with such changes as the Administrative Agent and the Consent Designated Subsidiary may reasonably require on the advice of their respective counsel to reflect local legal requirements; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Documents; and
(iv) the Restricted Subsidiary which is proposed to be designated as a Consent Designated Subsidiary shall have provided to the Administrative Agent such number of copies as the Administrative Agent may request of:request.
(Ab) a certified copy of the proposed Consent Designated Subsidiary’s Organic Documents;
(B) the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable, and to perform its obligations thereunder;
(C) a certificate to the incumbency of its officers signing the Consent Designated Subsidiary Agreement, the Guarantee and other applicable Security Documents, if applicable;
(D) a certificate of status, good standing or like certificate with respect to such Consent Designated Subsidiary issued by appropriate government officials of the jurisdiction of its incorporation; and
(E) an opinion of counsel to the Consent Designated Subsidiary in form and substance satisfactory to the Lenders’ Counsel and the Administrative Agent, each acting reasonably; and
(d) Celestica may, from time to time and If at any time hereaftera Borrower (other than GWI) no longer is a subsidiary of GWI, terminate the designation of a Designated Subsidiary as such by the delivery of written notice GWI shall cause to be delivered to the Administrative Agent and from and after an Election to Terminate terminating the day which is five (5) Banking Days after status of such Subsidiary as a Borrower. The delivery of an Election to Terminate shall not affect any obligation of a Borrower theretofore incurred or any guaranties of such obligations. The Administrative Agent shall promptly give notice to the Lenders of the receipt of such noticeany Election to Participate or Election to Terminate.
(c) Notwithstanding the foregoing, with respect to any Designated Subsidiary, GWI shall obtain the subject Subsidiary shall no longer be a written consent of the Administrative Agent and each Lender who is proposed and will hold Designated Subsidiary and Commitments or who will make Designated Subsidiary Term Loans, as applicable, which consent of each Lender shall not be unreasonably withheld (it being understood that a Lender shall be deemed to have no further right acted reasonably in withholding its consent if (i) it is unlawful for such Lender to make Loans under this Agreement to the proposed “Designated Subsidiary,” (ii) such Lender cannot or ability has not determined that it is lawful to obtain further Advances under do so, (iii) the Facility.making of a Loan to the proposed
Appears in 1 contract
Samples: Senior Secured Syndicated Facility Agreement (Genesee & Wyoming Inc)
Designated Subsidiaries. (a) The Administrative Agent and the Lenders acknowledge and agree and Celestica hereby confirms that Celestica has designated Celestica International as a Canadian Designated Subsidiary and that there are not, on the date hereof, any other Designated Subsidiaries.
(b) Celestica mayXxxx xxx, from time to time and at any time hereafterby delivery to the Administrative Agent of a written notice, request to designate any other one or more of its direct or indirect wholly-owned qualifying Restricted Subsidiaries (other than a Subsidiary that previously was designated as a Canadian Revolving Credit Borrower but ceased to be a Revolving Credit Borrower pursuant to a resignation effected under paragraph (c) below) as a “Designated Subsidiary provided that:
(i) all Lenders shall Subsidiary” for purposes of this Agreement and to have previously consented in writing to the designation of such Subsidiary as a Canadian Designated Subsidiary;
(ii) such Subsidiary was incorporated, continued, amalgamated or otherwise created in accordance with have all of the rights and continues to be governed by the laws obligations of a province Revolving Credit Borrower hereunder (a “Revolving Credit Borrower Designation”). The Administrative Agent shall promptly notify the Collateral Agent and each Revolving Credit Lender, Issuing Bank and Swing Line Lender of Canada or each Revolving Credit Borrower Designation by Xxxx and the federal laws of Canada and which is domiciled in Canada;
(iii) such Restricted Subsidiary, prior to becoming a Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) a Designated Subsidiary Agreement; (B) if it has not already done so, a Guarantee substantially in the form of Schedule H; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Documents; and
(iv) the Restricted Subsidiary which is proposed to become a Designated Subsidiary shall have delivered to the Administrative Agent:
(A) a certified copy identity of the proposed Designated respective Subsidiary’s Organic Documents;
(B) a certified copy of the resolutions authorizing it to enter into. Each Revolving Credit Lender, execute Issuing Bank and deliver the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable, and to perform its obligations thereunder;
(C) a certificate as to the incumbency of its officers signing the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable;
(D) a certificate of status, good standing or like certificate with respect to such Designated Subsidiary issued by appropriate government officials of the jurisdiction of its incorporation; and
(E) an opinion of counsel to the Designated Subsidiary in form and substance satisfactory to the Lenders’ Counsel and Swing Line Lender shall notify the Administrative Agent, each acting reasonably;
not later than 11:00 A.M. (c) Celestica mayNew York City time), from time to time and at any time hereafter, designate any other wholly-owned Restricted Subsidiary which does not fall within the definition of “Canadian Designated Subsidiary” as a Consent Designated Subsidiary, provided that:
(i) all Lenders shall have previously consented in writing to the designation ten Business Days after receipt of such Subsidiary as a Consent Designated Subsidiary;
request (ii) Celestica shall have obtained the agreement in writing of a Lender located in the jurisdiction where or such Consent Designated Subsidiary is resident, to utilize, subject to the terms of this Agreement, a portion of the Commitment of such Lender or its Affiliate to make Advances to the Consent Designated Subsidiary and such Lender shall have delivered a notice to the Administrative Agent in the form of Schedule M;
(iii) such Subsidiary, prior to becoming a Consent Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) a Designated Subsidiary Agreement substantially in the form of Schedule F; (B) a Guarantee substantially in the form of Schedule H, with such changes as the Administrative Agent and the Consent Designated Subsidiary may reasonably require on the advice of their respective counsel to reflect local legal requirements; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Documents; and
(iv) the Restricted Subsidiary which is proposed to be designated as a Consent Designated Subsidiary shall have provided to the Administrative Agent such number of copies shorter period as the Administrative Agent may request of:
agree) whether it consents (Asuch consent not to be unreasonably withheld or delayed) a certified copy of the proposed Consent Designated Subsidiary’s Organic Documents;
(B) the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable, and to perform its obligations thereunder;
(C) a certificate to the incumbency of its officers signing the Consent Designated Subsidiary Agreement, the Guarantee and other applicable Security Documents, if applicable;
(D) a certificate of status, good standing or like certificate with respect to such Consent Designated Subsidiary issued Revolving Credit Borrower Designation. Any failure by appropriate government officials of a Revolving Credit Lender, Issuing Bank or Swing Line Lender to respond to such request within the jurisdiction of its incorporation; and
(E) an opinion of counsel time period specified in the preceding sentence shall be deemed to the Consent Designated Subsidiary in form and substance satisfactory be a refusal by such Person to the Lenders’ Counsel and the Administrative Agent, each acting reasonably; and
(d) Celestica may, from time consent to time and at any time hereafter, terminate the designation of a Designated Subsidiary as such by the delivery of written notice to Revolving Credit Borrower Designation. If the Administrative Agent and from all the Revolving Credit Lenders, Issuing Banks and after Swing Line Lenders consent to such Revolving Credit Borrower Designation and if the day which is five requirements described in paragraph (5b) Banking Days after receipt of such noticebelow are satisfied or waived, the subject Administrative Agent shall so notify the Collateral Agent and the Revolving Credit Borrowers and such Subsidiary shall no longer be thereupon become a “Designated Subsidiary and Subsidiary” for purposes of this Agreement and, as such, shall have no further right or ability to obtain further Advances under all of the Facilityrights and obligations of a Revolving Credit Borrower hereunder.
Appears in 1 contract
Designated Subsidiaries. (a) The Administrative Agent GWI may at any time and the Lenders acknowledge and agree and Celestica hereby confirms that Celestica has designated Celestica International as a Canadian Designated Subsidiary and that there are not, on the date hereof, any other Designated Subsidiaries.
(b) Celestica may, from time to time and at any time hereafter, designate any other wholly-owned qualifying Restricted Subsidiary as a Canadian Designated Subsidiary provided that:
(ieach such designation a “Designation”) all Lenders shall have previously consented in writing by delivering an Election to the designation of such Subsidiary as a Canadian Designated Subsidiary;
(ii) such Subsidiary was incorporated, continued, amalgamated or otherwise created in accordance with and continues to be governed by the laws of a province of Canada or the federal laws of Canada and which is domiciled in Canada;
(iii) such Restricted Subsidiary, prior to becoming a Designated Subsidiary, shall have executed and delivered Participate to the Administrative Agent. Each such Election to Participate shall indicate (x) whether such Designated Subsidiary intends to (1) borrow Term Loans pursuant to the provisions of §6.18 or (2) establish Revolving Loan Commitments pursuant to the provisions of §6.18 or (3) otherwise establish Designated Subsidiary Commitments to such Designated Subsidiary, which shall be offset by a corresponding and equivalent reduction as designated by GWI in one or more of the Aggregate Canadian Revolving Loan Commitments, Aggregate European Commitments, Aggregate Australian Revolving Loan Commitments, Aggregate UK Revolving Loan Commitments and Aggregate Other Designated Subsidiary Commitments such that the Total Commitment in effect immediately before such Designation shall be equal to the Total Commitment immediately after, and after giving effect to, such Designation (including after giving effect to any increase of commitments pursuant to §6.18 entered into in connection with such Designation) (each such adjustment pursuant to this §6.23(a), a “Commitment Adjustment”); provided that each such Commitment Adjustment pursuant to a Designation shall be subject to the following conditions: (i) reallocation of Applicable Commitment amounts shall be made only between the offices or Affiliates of Applicable Lenders such that the sum of all the applicable Commitments of each Applicable Lender and its Affiliates shall not be increased or decreased as a result of any such reallocation, (ii) no Designation shall increase the Aggregate Foreign Currency Revolving Loan Commitments in excess of $500,000,000, (iii) the total Designated Subsidiary Commitments and Term Loans to a Designated Subsidiary shall not exceed $75,000,000, (iv) each reallocation shall be made pro rata among the Lenders whose Applicable Commitments are being reallocated from one Applicable Commitment to another, but shall not cause the Applicable Commitments of any other Lenders to change (but will result in a change in Commitment Percentages), (v) in no event shall (A) a Designated Subsidiary Agreementthe Aggregate Domestic Revolving Loan Commitments be reduced to an amount less than the greater of (x) $125,000,000 and (y) the Total Domestic Revolver Exposure; (B) if it has not already done so, a Guarantee substantially in the form of Schedule HAggregate Canadian Revolving Loan Commitments be reduced to an amount less than the Total Canadian Revolver Exposure; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security DocumentsAggregate European Commitments be reduced to an amount less than the Total European Exposure; and
(iv) the Restricted Subsidiary which is proposed to become a Designated Subsidiary shall have delivered to the Administrative Agent:
(A) a certified copy of the proposed Designated Subsidiary’s Organic Documents;
(B) a certified copy of the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable, and to perform its obligations thereunder;
(C) a certificate as to the incumbency of its officers signing the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable;
(D) a certificate of status, good standing the Aggregate Australian Revolving Loan Commitments be reduced to an amount less than the Total Australian Revolver Exposure; or like certificate with respect to such Designated Subsidiary issued by appropriate government officials of the jurisdiction of its incorporation; and
(E) the Aggregate UK Revolving Loan Commitments be reduced to an opinion of counsel amount less than the Total UK Revolver Exposure and (y) shall indicate the currencies the Loans to be made to the Designated Subsidiary in form and substance satisfactory shall be denominated (such currency, a “Designated Subsidiary Alternative Currency”); provided that such currencies shall be an Alternative Currency. Each such Election to the Lenders’ Counsel and the Administrative Agent, each acting reasonably;
(c) Celestica may, from time to time and at any time hereafter, designate any other wholly-owned Restricted Subsidiary which does not fall within the definition of “Canadian Designated Subsidiary” as a Consent Designated Subsidiary, provided that:
(i) all Lenders Participate shall have previously consented in writing to the designation be duly executed on behalf of such Subsidiary as a Consent Designated Subsidiary;
(ii) Celestica shall have obtained the agreement and GWI in writing of a Lender located in the jurisdiction where such Consent Designated Subsidiary is resident, to utilize, subject to the terms of this Agreement, a portion of the Commitment of such Lender or its Affiliate to make Advances to the Consent Designated Subsidiary and such Lender shall have delivered a notice to the Administrative Agent in the form of Schedule M;
(iii) such Subsidiary, prior to becoming a Consent Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) a Designated Subsidiary Agreement substantially in the form of Schedule F; (B) a Guarantee substantially in the form of Schedule H, with such changes as the Administrative Agent and the Consent Designated Subsidiary may reasonably require on the advice of their respective counsel to reflect local legal requirements; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Documents; and
(iv) the Restricted Subsidiary which is proposed to be designated as a Consent Designated Subsidiary shall have provided to the Administrative Agent such number of copies as the Administrative Agent may request of:request.
(Ab) If at any time a certified copy Subsidiary theretofore designated as a Designated Subsidiary no longer meets the requirements of the definition of Designated Subsidiary, GWI shall cause to be delivered to the Administrative Agent an Election to Terminate terminating the status of such Subsidiary as a Designated Subsidiary. The delivery of an Election to Terminate shall not affect any obligation of a Designated Subsidiary theretofore incurred or any guaranties of such obligations. The Administrative Agent shall promptly give notice to the Lenders of the receipt of any Election to Participate or Election to Terminate.
(c) Notwithstanding the foregoing, with respect to any Designated Subsidiary, GWI shall obtain the written consent of the Administrative Agent and each Lender who is proposed and will hold Designated Subsidiary Commitments or who will make Designated Subsidiary Term Loans, as applicable, which consent of each Lender shall not be unreasonably withheld (it being understood that a Lender shall be deemed to have acted reasonably in withholding its consent if (i) it is unlawful for such Lender to make Loans under this Agreement to the proposed “Designated Subsidiary,” (ii) such Lender cannot or has not determined that it is lawful to do so, (iii) the making of a Loan to the proposed “Designated Subsidiary” might subject such Lender to adverse tax consequences or adversely affect any Guaranty or Collateral with respect to any Loan, (iv) such Lender is required or has determined that it is prudent to register or file in the jurisdiction of formation or organization of the proposed Consent Designated Subsidiary’s Organic Documents;
(B) the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee and the it does not wish to do so or (v) that such Lender is restricted by operational or administrative procedures or other applicable Security Documents, if applicable, and internal policies from extending credit under this Agreement to perform its obligations thereunder;
(C) a certificate to the incumbency of its officers signing the Consent Designated Subsidiary Agreement, the Guarantee and other applicable Security Documents, if applicable;
(D) a certificate of status, good standing or like certificate with respect to such Consent Designated Subsidiary issued by appropriate government officials of Persons in the jurisdiction of its incorporation; and
(E) an opinion of counsel to the Consent Designated in which such Subsidiary in form and substance satisfactory to the Lenders’ Counsel and the Administrative Agent, each acting reasonably; andis located).
(d) Celestica Any Lender that does not consent to such proposed Designated Subsidiary as provided in §6.23(c) within 10 Business Days of receipt of such Election to Participate shall be a “Protesting Lender”. With respect to each Protesting Lender, GWI shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow under this Agreement, either (A) replace such Protesting Lender with respect to their proposed Designated Subsidiary Commitments or proposed Designated Subsidiary Term Loans, as applicable, with Lenders willing (in their sole discretion) to increase their Designated Subsidiary Commitments or make Designated Subsidiary Term Loans, as applicable, or other financial institutions willing (in their sole discretion) to become Lenders and extend Designated Subsidiary Commitments, (B) notify the Administrative Agent and such Protesting Lender that the Designated Subsidiary Commitments or Designated Subsidiary Term Loans, as applicable, of such Protesting Lender shall be terminated or shall not be made, as applicable; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal amount of its outstanding Loans, accrued interest thereon, accrued fees and all other amounts payable to it repaid by the Borrowers or (C) cancel its request to designate such Designated Subsidiary as a “Designated Subsidiary”.
(e) Each Lender may, from time at its option, make any Loan available to time and at any time hereafter, terminate Designated Foreign Subsidiary by causing any foreign or domestic branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of such Designated Foreign Subsidiary to repay such Loan in accordance with the terms of this Agreement.
(f) The designation of a Designated Subsidiary as such shall be effected by a joinder agreement (the delivery of written notice to “Designated Subsidiary Joinder”) executed by GWI, the Designated Subsidiary, the Administrative Agent and from each Lender holding any Designation Subsidiary Commitment (such Lenders, “Designated Subsidiary Lenders”), in form and after substance reasonably satisfactory to each of the day parties thereto; provided, that if the applicable Designated Subsidiary is organized or incorporated in or under the laws of, or for applicable Tax purposes is resident of or treated as engaged in a trade or business in, any jurisdiction other than a jurisdiction in or under the laws of which at least one of the then-existing Borrowers is five organized or incorporated on the date the applicable Election to Participate is delivered to the Administrative Agent, such Designated Subsidiary Joinder shall incorporate an amendment of this Agreement (5including, without limitation, §§ 2.9, 6.12 and the definition of “Excluded Taxes”) Banking Days after receipt of as mutually agreed by the Administrative Agent, such notice, the subject Subsidiary shall no longer be a Designated Subsidiary and each such Lender. Notwithstanding the provisions of §27, the Designated Subsidiary Joinder may, without the consent of any other Lenders, effect such amendments to this Credit Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this §6.23 (including any such changes as may be required in §2.9 ). In addition, unless otherwise specifically provided herein, all references in Loan Documents to Revolving Loans or Term Loans, as applicable, shall have no further right be deemed, unless the context otherwise requires, to include references to Designated Subsidiary Revolving Loans or ability Designated Subsidiary Term Loans, as applicable, made to obtain further Advances under any Designated Subsidiaries. This §6.23 shall supersede any provisions in §§2.11 or 27 to the Facilitycontrary.
Appears in 1 contract
Samples: Senior Secured Syndicated Facility Agreement (Genesee & Wyoming Inc)
Designated Subsidiaries. (a) The Administrative Agent and the Lenders acknowledge and agree and Celestica hereby confirms that Celestica has designated made the following designations, which Celestica hereby confirms:
(i) Celestica International as a Canadian Designated Subsidiary Subsidiary;
(ii) Celestica Corp. as a U.S. Designated Subsidiary;
(iii) Celestica U.S. as a U.S. Designated Subsidiary; and
(iv) Celestica Limited as a U.K. Designated Subsidiary; and that there are notthe Agents, on behalf of the date hereofLenders, any other Designated Subsidiariesacknowledge and agree to such designations.
(b) Celestica may, from time to time and at any time hereafter, designate any other wholly-owned qualifying Restricted Subsidiary as a Canadian Designated Subsidiary, U.S. Designated Subsidiary or a U.K. Designated Subsidiary provided that:
(i) all Lenders shall have previously consented in writing to the designation of such Subsidiary as a Canadian Designated Subsidiary;
(ii) such Subsidiary was incorporated, continued, amalgamated or otherwise created in accordance with and continues to be governed by the laws of a province of Canada or the federal laws of Canada and which is domiciled in Canada;
(iii) such Restricted Subsidiary, prior to becoming a Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) Agent a Designated Subsidiary Agreement; (B) Agreement and, if it has not already done so, a Guarantee substantially in the form of Schedule H; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security DocumentsJ; and
(ivii) the Restricted Subsidiary which is proposed to become a Designated Subsidiary shall have delivered to the Administrative Agent:
(A) a certified copy of the proposed Designated Subsidiary’s 's Organic Documents;
(B) a certified copy of the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee Agreement and the other applicable Security DocumentsGuarantee, if applicable, and to perform its obligations thereunder;
(C) a certificate as to the incumbency of its officers signing the Designated Subsidiary Agreement, the Guarantee Agreement and the other applicable Security DocumentsGuarantee, if applicable;,
(D) a certificate of status, good standing or like certificate with respect to such Designated Subsidiary issued by appropriate government officials of the jurisdiction of its incorporation; and
(E) an opinion of counsel to the Designated Subsidiary in form and substance of Schedule R with only those changes which are reasonably satisfactory to the Lenders’ ' Counsel and the Administrative Agent, each acting reasonably;
(c) Celestica may, from time to time and at any time hereafter, designate any other wholly-owned Restricted Subsidiary which does not fall within the definition of “Canadian Designated Subsidiary” as a Consent Designated Subsidiary, provided that:
(i) all Lenders shall have previously consented in writing counsel to the designation of such Subsidiary as a Consent Designated Subsidiary;
(ii) Celestica shall have obtained the agreement in writing of a Lender located in the jurisdiction where such Consent Designated Subsidiary is resident, to utilize, subject to the terms of this Agreement, a portion of the Commitment of such Lender or its Affiliate to make Advances to the Consent Designated Subsidiary and such Lender shall have delivered a notice to the Administrative Agent in the form of Schedule M;
(iii) such Subsidiary, prior to becoming a Consent Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) a Designated Subsidiary Agreement substantially in the form of Schedule F; (B) a Guarantee substantially in the form of Schedule H, with such changes as the Administrative Agent and the Consent Designated Subsidiary may reasonably require on the advice of their respective counsel to reflect local legal requirements; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Documents; and
(iv) the Restricted Subsidiary which is proposed to be designated as a Consent Designated Subsidiary shall have provided to the Administrative Agent such number of copies as the Administrative Agent may request of:
(A) a certified copy of the proposed Consent Designated Subsidiary’s Organic Documents;
(B) the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable, and to perform its obligations thereunder;
(C) a certificate to the incumbency of its officers signing the Consent Designated Subsidiary Agreement, the Guarantee and other applicable Security Documents, if applicable;
(D) a certificate of status, good standing or like certificate with respect to such Consent Designated Subsidiary issued by appropriate government officials of the jurisdiction of its incorporation; and
(E) an opinion of counsel to the Consent Designated Subsidiary in form and substance satisfactory to the Lenders’ Counsel and the Administrative Agent, each acting reasonably; and
(d) Celestica may, from time to time and at any time hereafter, terminate the designation of a Designated Subsidiary as such by the delivery of written notice to the Administrative Agent and from and after the day which is five (5) Banking Days after receipt of such notice, the subject Subsidiary shall no longer be a Designated Subsidiary and shall have no further right or ability to obtain further Advances under the Facility.
Appears in 1 contract
Samples: Credit Agreement (Celestica Inc)
Designated Subsidiaries. (a) The Administrative Agent and the Lenders acknowledge and agree and Celestica hereby confirms that Celestica has designated (i) Celestica International as a Canadian Designated Subsidiary and (ii) Celestica LLC as a U.S. Designated Subsidiary and that there are not, on as of the date hereof, any other Designated Subsidiaries.
(b) Celestica may, from time to time and at any time hereafter, designate any other wholly-owned qualifying Restricted Subsidiary as a Canadian Designated Subsidiary or a U.S. Designated Subsidiary provided that:
(i) all Lenders shall have previously consented in writing to the designation of such Restricted Subsidiary as a Canadian Designated Subsidiary;
(ii) in the case of (A) a Canadian Designated Subsidiary, such Subsidiary was incorporated, continued, amalgamated or otherwise created in accordance with and continues to be governed by the laws of a province of Canada or the federal laws of Canada and which is domiciled in Canada, and (B) a U.S. Designated Subsidiary, such Restricted Subsidiary was incorporated, amalgamated or otherwise created in accordance with and continues to be governed by the laws of a state in the United States of America and which is domiciled in the United States of America;
(iii) such Restricted Subsidiary, prior to becoming a Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) a Designated Subsidiary Agreement; (B) if it has not already done so, a Guarantee substantially in the form of Schedule H; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Documents; and
(iv) the Restricted Subsidiary which is proposed to become a Designated Subsidiary shall have delivered to the Administrative Agent:
(A) a certified copy of the proposed Designated Subsidiary’s Organic Documents;
(B) a certified copy of the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable, and to perform its obligations thereunder;
(C) a certificate as to the incumbency of its officers signing the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable;
(D) a certificate of status, good standing or like certificate with respect to such Designated Subsidiary issued by appropriate government officials of the jurisdiction of its incorporation; and
(E) an opinion of counsel to the Designated Subsidiary in form and substance satisfactory to the Lenders’ Counsel and the Administrative Agent, each acting reasonably;.
(c) Celestica may, from time to time and at any time hereafter, concurrently with the delivery of the Officer’s Certificate pursuant to Section 9.1(a)(iii) and at any two other times per year, designate any other wholly-owned Restricted Subsidiary which does not fall within the definition of “Canadian Designated Subsidiary” or “U.S. Designated Subsidiary” as a Consent Designated Subsidiary, provided that:
(i) all Lenders shall have previously consented in writing to the designation of such Restricted Subsidiary as a Consent Designated Subsidiary;
(ii) if such Restricted Subsidiary is not domiciled in a jurisdiction previously designated as an Additional Jurisdiction hereunder, Celestica shall have obtained the agreement in writing of a Lender located in the jurisdiction where such Consent Designated Subsidiary is residentone or more Lenders, to utilize, subject to the terms of this Agreement, a portion of the Commitment of such Lender or its Affiliate Lenders to make Advances to in the Consent Designated jurisdiction in which such Restricted Subsidiary is domiciled and each such Lender shall have delivered a notice to the Administrative Agent in the form of Schedule MM setting out, among other things, the name of the Affiliate of the Lender (each a “Consent Lender”) that will make Advances available in the Restricted Subsidiary’s jurisdiction and the Commitment of the Affiliate to be available hereunder;
(iii) if such Restricted Subsidiary is not domiciled in a jurisdiction previously designated as an Additional Jurisdiction hereunder, Celestica shall have delivered a notice in the form of Schedule W to the Administrative Agent in which it confirms the Commitment of each Consent Lender and reallocates the Commitments of the Related Lenders of each Consent Lender; such that following the addition of the Consent Lender as a Lender hereunder, the aggregate Commitments of the Consent Lender and its Related Lenders (after giving effect to the addition of the Consent Lender as a Lender) shall be equal to the aggregate Commitments of the Related Lenders prior to the addition of the Consent Lender;
(iv) such Restricted Subsidiary, prior to becoming a Consent Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) a Designated Subsidiary Agreement substantially in the form of Schedule F; (B) if it has not already done so, a Guarantee substantially in the form of Schedule H, with such changes as the Administrative Agent and the Consent Designated Subsidiary may reasonably require on the advice of their respective counsel to reflect local legal requirements; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Documents, with such changes as the Administrative Agent and the Consent Designated Subsidiary may reasonably require on the advice of their respective counsel to reflect local legal requirements; and
(ivv) the Restricted Subsidiary which is proposed to be designated as a Consent Designated Subsidiary shall have provided to the Administrative Agent such number of copies as the Administrative Agent may request of:
(A) a certified copy of the proposed Consent Designated Subsidiary’s Organic Documents;
(B) the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable, and to perform its obligations thereunder;
(C) a certificate to the incumbency of its officers signing the Consent Designated Subsidiary Agreement, the Guarantee and other applicable Security Documents, if applicable;
(D) a certificate of status, good standing or like certificate with respect to such Consent Designated Subsidiary issued by appropriate government officials of the jurisdiction of its incorporation; and
(E) an opinion of counsel to the Consent Designated Subsidiary in form and substance satisfactory to the Lenders’ Counsel and the Administrative Agent, each acting reasonably.
(d) If a notice(s) in the form of Schedule M has been delivered pursuant to Section 7.1(c)(ii) and the Restricted Subsidiary referred to therein is designated as a Consent Designated Subsidiary, each party hereto hereby irrevocably authorizes the Administrative Agent to:
(i) insert the name of each Consent Lender identified in such notice(s) on Schedule A (who shall thereafter be an Other Jurisdiction Lender hereunder) and identify on Schedule A the jurisdiction in which such Consent Lender shall make Advances hereunder (which shall thereafter be an Additional Jurisdiction hereunder);
(ii) amend Schedule B to set out the Commitment of each Consent Lender and the revised Commitment of its Related Lenders (as set out in the applicable notice delivered by Celestica pursuant to Section 7.1(c)(iii));
(iii) amend Schedule B to identify the maximum Commitment of each Consent Lender, which shall be equal to the Consent Lender’s initial Commitment; and
(div) affix an execution page to this Agreement which has been executed and delivered by each Consent Lender.
(e) Celestica may, from time to time, in conjunction with the delivery of the Officer’s Certificate pursuant to Section 2.3(g)(i) or the notice pursuant to Section 2.3(g)(iii), obtain the agreement of an Other Jurisdiction Lender and its Related Lenders to increase the maximum Commitment of the Other Jurisdiction Lender set out in Schedule B, which agreement shall be evidenced by the delivery by such Other Jurisdiction Lender and its Related Lenders to the Administrative Agent of a notice in the form of Schedule X. Upon receipt of such notice, each party hereto irrevocably authorizes the Administrative Agent to amend Schedule B to identify the revised maximum Commitment of such Other Jurisdiction Lender.
(f) Celestica may, from time to time, in conjunction with the delivery of the Officer’s Certificate pursuant to Section 2.3(g)(i) or the notice pursuant to Section 2.3(g)(iii), obtain the agreement of one or more Lenders, to utilize, subject to the terms of this Agreement, a portion of the Commitment of such Lender(s) to make Advances in an Additional Jurisdiction, which agreement shall be evidenced by the delivery by each such Lender of a notice in the form of Schedule Y setting out, among other things, the name of the Affiliate of the Lender that will make Advances available in the Additional Jurisdiction and the Commitment of the Affiliate to be available hereunder. In conjunction with the delivery of such notice, Celestica shall deliver a notice in the form of Schedule Z to the Administrative Agent in which it confirms the Commitment of each such Affiliate and reallocates the Commitments of the Related Lenders of each Affiliate; such that following the addition of each Affiliate as a Lender hereunder, the aggregate Commitments of each Affiliate and its Related Lenders (after giving effect to the addition of the Affiliate as a Lender) shall be equal to the aggregate Commitments of the Related Lenders prior to the addition of the Affiliate. Upon receipt of such notices, each party hereto hereby irrevocably authorizes the Administrative Agent to:
(i) insert the name of each Affiliate identified in such notice(s) on Schedule A (who shall thereafter be an Other Jurisdiction Lender hereunder) and identify on Schedule A the Additional Jurisdiction in which such Affiliate shall make Advances hereunder;
(ii) amend Schedule B to set out the Commitment of each Affiliate and the revised Commitment of its Related Lenders (as set out in the applicable notice delivered by Celestica);
(iii) amend Schedule B to identify the maximum Commitment of each Affiliate, which shall be equal to the Affiliate’s initial Commitment; and
(iv) affix an execution page to this Agreement which has been executed and delivered by each Affiliate.
(g) Celestica may, from time to time and at any time hereafter, terminate the designation of a Designated Subsidiary as such by the delivery of written notice to the Administrative Agent and from and after the day which is five (5) Banking Days after receipt of such notice, the subject Subsidiary shall no longer be a Designated Subsidiary and shall have no further right or ability to obtain further Advances under the Facility.
Appears in 1 contract
Designated Subsidiaries. (a) The Administrative Agent GWI may at any time and the Lenders acknowledge and agree and Celestica hereby confirms that Celestica has designated Celestica International as a Canadian Designated Subsidiary and that there are not, on the date hereof, any other Designated Subsidiaries.
(b) Celestica may, from time to time and at any time hereafter, designate any Subsidiary (other wholly-owned qualifying Restricted Subsidiary than the Aus JV and its Subsidiaries) as a Canadian Designated Subsidiary provided that:
(ieach such designation a “Designation”) all Lenders shall have previously consented in writing by delivering an Election to the designation of such Subsidiary as a Canadian Designated Subsidiary;
(ii) such Subsidiary was incorporated, continued, amalgamated or otherwise created in accordance with and continues to be governed by the laws of a province of Canada or the federal laws of Canada and which is domiciled in Canada;
(iii) such Restricted Subsidiary, prior to becoming a Designated Subsidiary, shall have executed and delivered Participate to the Administrative Agent. Each such Election to Participate shall indicate (x) whether such Designated Subsidiary intends to (1) borrow Term Loans pursuant to the provisions of §6.18 or (2) establish Revolving Loan Commitments pursuant to the provisions of §6.18 or (3) otherwise establish Designated Subsidiary Commitments to such Designated Subsidiary, which shall be offset by a corresponding and equivalent reduction as designated by GWI in one or more of the Aggregate Canadian Revolving Loan Commitments, Aggregate European Commitments, Aggregate Australian Revolving Loan Commitments, Aggregate UK Revolving Loan Commitments and Aggregate Other Designated Subsidiary Commitments such that the Total Commitment in effect immediately before such Designation shall be equal to the Total Commitment immediately after, and after giving effect to, such Designation (including after giving effect to any increase of commitments pursuant to §6.18 entered into in connection with such Designation) (each such adjustment pursuant to this §6.23(a), a “Commitment Adjustment”); provided that each such Commitment Adjustment pursuant to a Designation shall be subject to the following conditions: (i) reallocation of Applicable Commitment amounts shall be made only between the offices or Affiliates of Applicable Lenders such that the sum of all the applicable Commitments of each Applicable Lender and its Affiliates shall not be increased or decreased as a result of any such reallocation, (ii) no Designation shall increase the Aggregate Foreign Currency Revolving Loan Commitments in excess of $500,000,000, (iii) the total Designated Subsidiary Commitments and Term Loans to a Designated Subsidiary shall not exceed $75,000,000, (iv) each reallocation shall be made pro rata among the Lenders whose Applicable Commitments are being reallocated from one Applicable Commitment to another, but shall not cause the Applicable Commitments of any other Lenders to change (but will result in a change in Commitment Percentages), (v) in no event shall (A) a Designated Subsidiary Agreementthe Aggregate Domestic Revolving Loan Commitments be reduced to an amount less than the greater of (x) $125,000,000 and (y) the Total Domestic Revolver Exposure; (B) if it has not already done so, a Guarantee substantially in the form of Schedule HAggregate Canadian Revolving Loan Commitments be reduced to an amount less than the Total Canadian Revolver Exposure; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security DocumentsAggregate European Commitments be reduced to an amount less than the Total European Exposure; and
(iv) the Restricted Subsidiary which is proposed to become a Designated Subsidiary shall have delivered to the Administrative Agent:
(A) a certified copy of the proposed Designated Subsidiary’s Organic Documents;
(B) a certified copy of the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable, and to perform its obligations thereunder;
(C) a certificate as to the incumbency of its officers signing the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable;
(D) a certificate of status, good standing the Aggregate Australian Revolving Loan Commitments be reduced to an amount less than the Total Australian Revolver Exposure; or like certificate with respect to such Designated Subsidiary issued by appropriate government officials of the jurisdiction of its incorporation; and
(E) the Aggregate UK Revolving Loan Commitments be reduced to an opinion of counsel amount less than the Total UK Revolver Exposure and (y) shall indicate the currencies the Loans to be made to the Designated Subsidiary in form and substance satisfactory shall be denominated (such currency, a “Designated Subsidiary Alternative Currency”); provided that such currencies shall be an Alternative Currency. Each such Election to the Lenders’ Counsel and the Administrative Agent, each acting reasonably;
(c) Celestica may, from time to time and at any time hereafter, designate any other wholly-owned Restricted Subsidiary which does not fall within the definition of “Canadian Designated Subsidiary” as a Consent Designated Subsidiary, provided that:
(i) all Lenders Participate shall have previously consented in writing to the designation be duly executed on behalf of such Subsidiary as a Consent Designated Subsidiary;
(ii) Celestica shall have obtained the agreement and GWI in writing of a Lender located in the jurisdiction where such Consent Designated Subsidiary is resident, to utilize, subject to the terms of this Agreement, a portion of the Commitment of such Lender or its Affiliate to make Advances to the Consent Designated Subsidiary and such Lender shall have delivered a notice to the Administrative Agent in the form of Schedule M;
(iii) such Subsidiary, prior to becoming a Consent Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) a Designated Subsidiary Agreement substantially in the form of Schedule F; (B) a Guarantee substantially in the form of Schedule H, with such changes as the Administrative Agent and the Consent Designated Subsidiary may reasonably require on the advice of their respective counsel to reflect local legal requirements; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Documents; and
(iv) the Restricted Subsidiary which is proposed to be designated as a Consent Designated Subsidiary shall have provided to the Administrative Agent such number of copies as the Administrative Agent may request of:request.
(Ab) a certified copy of the proposed Consent Designated Subsidiary’s Organic Documents;
(B) the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable, and to perform its obligations thereunder;
(C) a certificate to the incumbency of its officers signing the Consent Designated Subsidiary Agreement, the Guarantee and other applicable Security Documents, if applicable;
(D) a certificate of status, good standing or like certificate with respect to such Consent Designated Subsidiary issued by appropriate government officials of the jurisdiction of its incorporation; and
(E) an opinion of counsel to the Consent Designated Subsidiary in form and substance satisfactory to the Lenders’ Counsel and the Administrative Agent, each acting reasonably; and
(d) Celestica may, from time to time and If at any time hereafter, terminate the designation of a Subsidiary theretofore designated as a Designated Subsidiary as such by no longer meets the delivery requirements of written notice the definition of Designated Subsidiary, GWI shall cause to be delivered to the Administrative Agent and from and after an Election to Terminate terminating the day which is five (5) Banking Days after receipt status of such notice, the subject Subsidiary shall no longer be as a Designated Subsidiary and shall have no further right or ability to obtain further Advances under the Facility.Designated
Appears in 1 contract
Samples: Senior Secured Syndicated Facility Agreement (Genesee & Wyoming Inc)
Designated Subsidiaries. (a) Xxxx xxx, from time to time by delivery to the Administrative Agent of a written notice, request to designate one or more of its direct or indirect wholly-owned Subsidiaries (other than a Subsidiary that previously was designated as a Revolving Credit Borrower but ceased to be a Revolving Credit Borrower pursuant to a resignation effected under paragraph (c) below) as a “Designated Subsidiary” for purposes of this Agreement and to have such Subsidiary have all of the rights and obligations of a Revolving Credit Borrower hereunder (a “Revolving Credit Borrower Designation”). The Administrative Agent shall promptly notify the Collateral Agent and each Revolving Credit Lender, Issuing Bank and Swing Line Lender of each Revolving Credit Borrower Designation by Xxxx and the identity of the respective Subsidiary. Each Revolving Credit Lender, Issuing Bank and Swing Line Lender shall notify the Administrative Agent, not later than 11:00 A.M. (New York City time), ten Business Days after receipt of such request (or such shorter period as the Administrative Agent may agree) whether it consents (such consent not to be unreasonably withheld or delayed) to such Revolving Credit Borrower Designation. Any failure by a Revolving Credit Lender, Issuing Bank or Swing Line Lender to respond to such request within the time period specified in the preceding sentence shall be deemed to be a refusal by such Person to consent to such Revolving Credit Borrower Designation. If the Administrative Agent and all the Revolving Credit Lenders, Issuing Banks and Swing Line Lenders acknowledge consent to such Revolving Credit Borrower Designation and agree if the requirements described in paragraph (b) below are satisfied or waived, the Administrative Agent shall so notify the Collateral Agent and Celestica hereby confirms that Celestica has designated Celestica International the Revolving Credit Borrowers 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 Canadian Designated Subsidiary and that there are not, on the date hereof, any other Designated SubsidiariesRevolving Credit Borrower hereunder.
(b) Celestica may, from time to time and at Following any time hereafter, designate any other wholly-owned qualifying Restricted Subsidiary as request by Xxxx for a Canadian Revolving Credit Borrower Designation of a Designated Subsidiary provided thatpursuant to this Section 9.15:
(i) all Lenders shall have previously consented if such Revolving Credit Borrower Designation obligates any Agent or any Revolving Credit Lender, Issuing Bank or Swing Line Lender to comply with “know your customer”, Beneficial Ownership Regulation or other identification procedures in writing circumstances where the necessary information is not already available to it, Xxxx shall, promptly upon the designation request of any Agent, Revolving Credit Lender, Issuing Bank or Swing Line Lender, supply such Subsidiary documentation and other evidence as a Canadian Designated Subsidiaryis reasonably requested by such Agent, Revolving Credit Lender, Issuing Bank or Swing Line Lender;
(ii) if such Designated Subsidiary was incorporatedis a Domestic Subsidiary but not a Material Subsidiary, continued, amalgamated or otherwise created in accordance it shall (and Xxxx shall cause it to) comply with and continues to be governed by the laws requirements of Section 5.01(i) as if it became a province domestic Material Subsidiary for the purposes thereof on the date of Canada or the federal laws of Canada and which is domiciled in CanadaDana’s request for such Revolving Credit Borrower Designation;
(iii) such Restricted Subsidiary, prior to becoming a Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) a Designated Subsidiary shall (and Xxxx shall cause it to) enter into a Designation Agreement; (B) if it has not already done so, a Guarantee substantially in the form of Schedule H; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Documents; and
(iv) the Restricted Subsidiary which is proposed to become a such Designated Subsidiary shall have delivered (and Xxxx shall cause it to) deliver to the Administrative Agent:
(A) a certified copy copies of the proposed resolutions of the boards of directors (or the equivalent) of such Designated Subsidiary’s Organic DocumentsSubsidiary approving the execution and delivery of the documents described in clause (ii) or (iii) above, as applicable, to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to such documents;
(B) a certified copy of the resolutions authorizing it to enter into, execute and deliver the charter or other constitutive document of such Designated Subsidiary Agreementand each amendment thereto, certified (as of a date reasonably acceptable to the Guarantee Administrative Agent) by the Secretary of State (or the equivalent) of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and the other applicable Security Documents, if applicable, and to perform its obligations thereundercomplete copy thereof;
(C) a certificate of such Designated Subsidiary signed on behalf of such Designated Subsidiary by a Responsible Officer, certifying as to (I) the incumbency accuracy and completeness of its officers signing the charter (or other applicable formation document) of such Designated Subsidiary Agreement, the Guarantee and the absence of any changes thereto; (II) the accuracy and completeness of the bylaws (or other applicable Security Documentsorganizational document) of such Designated Subsidiary as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in clause (A) above were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (III) the absence of any proceeding known to be pending for the dissolution, if applicableliquidation or other termination of the existence of such Designated Subsidiary; and (IV) the accuracy in all material respects of the representations and warranties made by such Designated Subsidiary in the Loan Documents to which it is or is to be a party;
(D) a certificate of status, good standing the Secretary or like certificate with respect to an Assistant Secretary (or the equivalent) of such Designated Subsidiary issued by appropriate government officials certifying the names and true signatures of the jurisdiction officers of its incorporationsuch Designated Subsidiary authorized to sign the documents to be delivered under this Section 9.15(b); and
(E) an opinion favorable and customary opinions of counsel to the Designated Subsidiary in form and substance satisfactory to the Lenders’ Counsel and the Administrative Agent, each acting reasonably;
(c) Celestica may, from time to time and at any time hereafter, designate any other wholly-owned Restricted Subsidiary which does not fall within the definition of “Canadian Designated Subsidiary” as a Consent Designated Subsidiary, provided that:
(i) all Lenders shall have previously consented in writing to the designation of Loan Parties addressing such Subsidiary as a Consent Designated Subsidiary;
(ii) Celestica shall have obtained the agreement in writing of a Lender located in the jurisdiction where such Consent Designated Subsidiary is resident, to utilize, subject to the terms of this Agreement, a portion of the Commitment of such Lender or its Affiliate to make Advances to the Consent Designated Subsidiary and such Lender shall have delivered a notice to the Administrative Agent in the form of Schedule M;
(iii) such Subsidiary, prior to becoming a Consent Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) a Designated Subsidiary Agreement substantially in the form of Schedule F; (B) a Guarantee substantially in the form of Schedule H, with such changes as the Administrative Agent and the Consent Designated Subsidiary may reasonably require on the advice of their respective counsel to reflect local legal requirements; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Documents; and
(iv) the Restricted Subsidiary which is proposed to be designated as a Consent Designated Subsidiary shall have provided to the Administrative Agent such number of copies matters as the Administrative Agent may request of:reasonably request, including in respect of the documents to be delivered under this Section 9.15(b).
(Ac) A Borrower joined pursuant to Section 9.15 or any other Revolving Credit Borrower (other than Xxxx) may elect to resign as a certified copy Borrower; provided that: (i) no Default or Event of Default is continuing or would result from the resignation of such Borrower, (ii) such resigning Borrower has delivered to the Administrative Agent a notice of resignation at least ten Business Days (or such shorter period as the Administrative Agent may agree in its sole election) prior to the proposed resignation and (iii) on or before the date of the proposed Consent Designated Subsidiary’s Organic Documents;
resignation of such Borrower, such Borrower shall have either (Bx) paid in full all of its Obligations under the resolutions authorizing Loan Documents to which it is a party (other than its Guaranteed Obligations) or (y) assigned all of its Obligations under the Loan Documents to enter into, execute which it is a party (other than its Guaranteed Obligations) to another Revolving Credit Borrower (including Xxxx) pursuant to an assignment and deliver assumption agreement that is in form and substance reasonably satisfactory to the Designated Subsidiary AgreementAdministrative Agent. Upon satisfaction of the requirements in the foregoing sentence, the Guarantee and the other applicable Security Documentsresigning Borrower shall cease to be a Borrower (and, if applicable, a guarantor of the Obligations of any other Borrower that is a Foreign Subsidiary) for all purposes of the Credit Agreement and any other Loan Document. In the event that any Revolving Credit Borrower (other than Xxxx) ceases to perform its obligations thereunder;
(C) be a certificate direct or indirect wholly-owned Subsidiary of Xxxx, on or prior to the incumbency date of such event such Borrower shall have either (x) paid in full all of its officers signing Obligations under the Consent Designated Subsidiary Agreement, the Guarantee and Loan Documents to which it is a party (other applicable Security Documents, if applicable;
than its Guaranteed Obligations) or (Dy) a certificate of status, good standing or like certificate with respect to such Consent Designated Subsidiary issued by appropriate government officials of the jurisdiction assigned all of its incorporation; and
Obligations under the Loan Documents to which it is a party (Eother than its Guaranteed Obligations) to another Revolving Credit Borrower (including Xxxx) pursuant to an opinion of counsel to the Consent Designated Subsidiary assignment and assumption agreement that is in form and substance reasonably satisfactory to the Lenders’ Counsel and the Administrative Agent, each acting reasonably; and
(d) Celestica may, from time to time and at any time hereafter, terminate the designation of a Designated Subsidiary as such by the delivery of written notice to the Administrative Agent and from and after the day which is five (5) Banking Days after receipt of such notice, the subject Subsidiary shall no longer be a Designated Subsidiary and shall have no further right or ability to obtain further Advances under the Facility.
Appears in 1 contract
Designated Subsidiaries. (a) The Company may at any time, and from time to time, upon not less than 15 Business Days’ notice 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 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 Agreement duly executed by the Company and the respective Subsidiary and substantially in the form of Exhibit F hereto, 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 4.04 and after such Designation Agreement is accepted by the Administrative 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 (except with respect to Term Loans which may only be borrowed by the Company). The Administrative Agent shall promptly notify each Revolving 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 9.18(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 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 Lenders acknowledge and agree and Celestica hereby confirms Company, fulfill its Revolving Commitment by causing a branch or an Affiliate of such Lender to act as the Lender in respect of such Designated Subsidiary; provided that Celestica has designated Celestica International any exercise of such option shall not affect in any manner the obligation of any Borrower to repay such Loan in accordance with the terms of this Agreement. 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 Canadian Designated Subsidiary, and in any event no later than 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 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 for which the making of a Revolving Loan to such Designated Subsidiary is against such Lender’s internal policies (a “Protesting Lender”) shall so notify the Company and that there are notthe Administrative Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date hereofthat such Designated Subsidiary shall have the right to borrow hereunder, any either (A) notify the Administrative Agent and such Protesting Lender that the Revolving 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 Revolving Loans and Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder from the Company or (B) cancel its request to designate such Subsidiary as a “Designated SubsidiariesSubsidiary” hereunder.
(b) Celestica mayUpon the request of the Company and the payment and performance in full of all of the indebtedness, from liabilities and obligations under this Agreement of any Designated Subsidiary, then, so long as at the time to time and at any time hereafterno Borrowing Request is outstanding, designate any other wholly-owned qualifying Restricted Subsidiary such Subsidiary’s status as a Canadian “Designated Subsidiary” shall terminate upon notice to such effect from the Administrative Agent to the Revolving Lenders (which notice the Administrative Agent shall give promptly, and only upon its receipt of a request therefor from the Company). Thereafter, the Revolving Lenders shall be under no further obligation to make any Revolving Loans hereunder to such Designated Subsidiary.
(c) Each Designated Subsidiary provided thathereby appoints the Company as its non-exclusive representative and agent for all purposes under the Loan Documents, including, without limitation, requests for Revolving Loans and Letters of Credit, designation of interest rates, delivery or receipt of notices and other communications, requests for waivers, amendments or other accommodations, actions under the Loan Documents (including in respect of compliance with covenants), and all other dealings with the Administrative Agent, the Issuing Banks or any Revolving Lender, and each Designated Subsidiary releases the Company from any restrictions on representing several Persons and self-dealing under any applicable law (the Company, acting on behalf of any Designated Subsidiary pursuant to such agency, the “Borrower Agent”). The Company hereby accepts such appointment as non-exclusive representative and agent of each Designated Subsidiary. In addition:
(i) all the Administrative Agent, the Issuing Banks and the Revolving Lenders shall have previously consented be entitled to rely upon, and shall be fully protected in writing to relying upon, any notice or other communication (including any Borrowing Request or any Interest Election Request) delivered on behalf of a Designated Subsidiary by the designation of such Subsidiary as a Canadian Designated SubsidiaryBorrower Agent;
(ii) such the Administrative Agent, the Issuing Banks and the Revolving Lenders may give any notice to or make any other communication with any Designated Subsidiary was incorporated, continued, amalgamated hereunder to or otherwise created in accordance with and continues to be governed by the laws of a province of Canada or the federal laws of Canada and which is domiciled in CanadaBorrower Agent;
(iii) such Restricted Subsidiary, prior to becoming a Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) a Designated Subsidiary Agreement; (B) if it has not already done so, a Guarantee substantially in the form of Schedule H; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Issuing Banks and the Revolving Lenders shall have the right, in its discretion, to deal exclusively with the Borrower Agent for any or all purposes under the Loan Documents; and
(iv) the Restricted Subsidiary which is proposed to become a each Designated Subsidiary shall have delivered to the Administrative Agent:
(A) a certified copy of the proposed Designated Subsidiary’s Organic Documents;
(B) a certified copy of the resolutions authorizing it to enter intoagrees that any notice, execute and deliver the Designated Subsidiary Agreementelection, the Guarantee and the other applicable Security Documentscommunication, if applicablerepresentation, and to perform agreement or undertaking made on its obligations thereunder;
(C) a certificate as to the incumbency of its officers signing the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable;
(D) a certificate of status, good standing or like certificate with respect to such Designated Subsidiary issued by appropriate government officials of the jurisdiction of its incorporation; and
(E) an opinion of counsel to the Designated Subsidiary in form and substance satisfactory to the Lenders’ Counsel and the Administrative Agent, each acting reasonably;
(c) Celestica may, from time to time and at any time hereafter, designate any other wholly-owned Restricted Subsidiary which does not fall within the definition of “Canadian Designated Subsidiary” as a Consent Designated Subsidiary, provided that:
(i) all Lenders shall have previously consented in writing to the designation of such Subsidiary as a Consent Designated Subsidiary;
(ii) Celestica shall have obtained the agreement in writing of a Lender located in the jurisdiction where such Consent Designated Subsidiary is resident, to utilize, subject to the terms of this Agreement, a portion of the Commitment of such Lender or its Affiliate to make Advances to the Consent Designated Subsidiary and such Lender shall have delivered a notice to the Administrative Agent in the form of Schedule M;
(iii) such Subsidiary, prior to becoming a Consent Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) a Designated Subsidiary Agreement substantially in the form of Schedule F; (B) a Guarantee substantially in the form of Schedule H, with such changes as the Administrative Agent and the Consent Designated Subsidiary may reasonably require on the advice of their respective counsel to reflect local legal requirements; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Documents; and
(iv) the Restricted Subsidiary which is proposed to be designated as a Consent Designated Subsidiary shall have provided to the Administrative Agent such number of copies as the Administrative Agent may request of:
(A) a certified copy of the proposed Consent Designated Subsidiary’s Organic Documents;
(B) the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable, and to perform its obligations thereunder;
(C) a certificate to the incumbency of its officers signing the Consent Designated Subsidiary Agreement, the Guarantee and other applicable Security Documents, if applicable;
(D) a certificate of status, good standing or like certificate with respect to such Consent Designated Subsidiary issued by appropriate government officials of the jurisdiction of its incorporation; and
(E) an opinion of counsel to the Consent Designated Subsidiary in form and substance satisfactory to the Lenders’ Counsel and the Administrative Agent, each acting reasonably; and
(d) Celestica may, from time to time and at any time hereafter, terminate the designation of a Designated Subsidiary as such behalf by the delivery of written notice to the Administrative Borrower Agent shall be binding upon and from and after the day which is five (5) Banking Days after receipt of such notice, the subject Subsidiary shall no longer be a Designated Subsidiary and shall have no further right or ability to obtain further Advances under the Facilityenforceable against it.
Appears in 1 contract
Samples: Credit Agreement (Convergys Corp)
Designated Subsidiaries. (a) The Administrative Agent and the Lenders acknowledge and agree and Celestica hereby confirms that Celestica has designated Celestica International as a Canadian Designated Subsidiary and that there are not, on the date hereof, any other Designated Subsidiaries.
(b) Celestica may, from time to time and at any time hereafter, designate any other wholly-owned qualifying Restricted Subsidiary as a Canadian Designated Subsidiary provided that:
(i) all Lenders shall have previously consented in writing to the designation of such Subsidiary as a Canadian Designated Subsidiary;
(ii) such Subsidiary was incorporated, continued, amalgamated or otherwise created in accordance with and continues to be governed by the laws of a province of Canada or the federal laws of Canada and which is domiciled in Canada;
(iii) such Restricted Subsidiary, prior to becoming a Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) Agent a Designated Subsidiary Agreement; (B) Agreement and, if it has not already done so, a Guarantee substantially in the form of Schedule H; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Documents; and
(iv) the Restricted Subsidiary which is proposed to become a Designated Subsidiary shall have delivered to the Administrative Agent:
(A) a certified copy of the proposed Designated Subsidiary’s 's Organic Documents;
(B) a certified copy of the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee Agreement and the other applicable Security DocumentsGuarantee, if applicable, and to perform its obligations thereunder;
(C) a certificate as to the incumbency of its officers signing the Designated Subsidiary Agreement, the Guarantee Agreement and the other applicable Security DocumentsGuarantee, if applicable;,
(D) a certificate of status, good standing or like certificate with respect to such Designated Subsidiary issued by appropriate government officials of the jurisdiction of its incorporation; and
(E) an opinion of counsel to the Designated Subsidiary in form and substance of Schedule O with only those changes which are reasonably satisfactory to the Lenders’ ' Counsel and counsel to the Administrative Agent, each acting reasonablyDesignated Subsidiary;
(c) Celestica may, from time to time and at any time hereafter, designate any other wholly-owned Restricted Subsidiary which does not fall within the definition of “Canadian Designated Subsidiary” "CANADIAN DESIGNATED SUBSIDIARY" as a Consent Designated Subsidiary, provided that:
(i) all Lenders shall have previously consented in writing to the designation of such Subsidiary as a Consent Designated Subsidiary;
(ii) Celestica shall have obtained the agreement in writing of a Lender located in the jurisdiction where such Consent Designated Subsidiary is resident, to utilize, subject to the terms of this Agreement, a portion of the Commitment of such Lender or its Affiliate to make Advances to the Consent Designated Subsidiary and such Lender shall have delivered a notice to the Administrative Agent in the form of Schedule MSubsidiary;
(iii) such Subsidiary, prior to becoming a Consent Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) Agent a Designated Subsidiary Agreement substantially in the form of Schedule F; (B) H and a Guarantee substantially in the form of Schedule HJ, with such changes as the Administrative Agent and the Consent Designated Subsidiary may reasonably require on the advice of their respective counsel to reflect local legal requirements; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Documents; and
(iv) the Restricted Subsidiary which is proposed to be designated as a Consent Designated Subsidiary shall have provided to the Administrative Agent such number of copies as the Administrative Agent may request of:
(A) a certified copy of the proposed Consent Designated Subsidiary’s 's Organic Documents;
(B) the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee Agreement and the other applicable Security DocumentsGuarantee, if applicable, and to perform its obligations thereunder;
(C) a certificate to the incumbency of its officers signing the Consent Designated Subsidiary Agreement, Agreement and the Guarantee and other applicable Security DocumentsGuarantee, if applicable;
(D) a certificate of status, good standing or like certificate with respect to such Consent Designated Subsidiary issued by appropriate government officials of the jurisdiction of its incorporation; and
(E) an opinion of counsel to the Consent Designated Subsidiary in the form and substance of Schedule R with only those changes which are reasonably satisfactory to the Lenders’ ' Counsel and counsel to the Administrative Agent, each acting reasonablyConsent Designated Subsidiary; and
(d) Celestica may, from time to time and at any time hereafter, terminate the designation of a Designated Subsidiary as such by the delivery of written notice to the Administrative Agent and the Relevant Facility Agent and from and after the day which is five (5) Banking Days after receipt of such notice, the subject Subsidiary shall no longer be a Designated Subsidiary and shall have no further right or ability to obtain further Advances under the Facility.
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Designated Subsidiaries. (a) The Administrative Agent and the Lenders acknowledge and agree and Celestica hereby confirms that Celestica has designated (i) Celestica International as a Canadian Designated Subsidiary and (ii) Celestica LLC as a U.S. Designated Subsidiary and that there are not, on as of the date hereof, any other Designated Subsidiaries.
(b) Celestica may, from time to time and at any time hereafter, designate any other wholly-owned qualifying Restricted Subsidiary as a Canadian Designated Subsidiary or a U.S. Designated Subsidiary provided that:
(i) all Lenders shall have previously consented in writing to the designation of such Restricted Subsidiary as a Canadian Designated Subsidiary;
(ii) in the case of (A) a Canadian Designated Subsidiary, such Subsidiary was incorporated, continued, amalgamated or otherwise created in accordance with and continues to be governed by the laws of a province of Canada or the federal laws of Canada and which is domiciled in Canada, and (B) a U.S. Designated Subsidiary, such Restricted Subsidiary was incorporated, amalgamated or otherwise created in accordance with and continues to be governed by the laws of a state in the United States of America and which is domiciled in the United States of America;
(iii) such Restricted Subsidiary, prior to becoming a Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) a Designated Subsidiary Agreement; (B) if it has not already done so, a Guarantee substantially in the form of Schedule H; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Documents; and
(iv) the Restricted Subsidiary which is proposed to become a Designated Subsidiary shall have delivered to the Administrative Agent:
(A) a certified copy of the proposed Designated Subsidiary’s Organic Documents;
(B) a certified copy of the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable, and to perform its obligations thereunder;
(C) a certificate as to the incumbency of its officers signing the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable;
(D) a certificate of status, good standing or like certificate with respect to such Designated Subsidiary issued by appropriate government officials of the jurisdiction of its incorporation; and
(E) an opinion of counsel to the Designated Subsidiary in form and substance satisfactory to the Lenders’ Counsel and the Administrative Agent, each acting reasonably;.
(c) Celestica may, from time to time and at any time hereafter, concurrently with the delivery of the Officer’s Certificate pursuant to Section 9.1(a)(iii) and at any two other times per year, designate any other wholly-owned Restricted Subsidiary which does not fall within the definition of “Canadian Designated Subsidiary” or “U.S. Designated Subsidiary” as a Consent Designated Subsidiary, provided that:
(i) all Lenders shall have previously consented in writing to the designation of such Restricted Subsidiary as a Consent Designated Subsidiary;
(ii) if such Restricted Subsidiary is not domiciled in a jurisdiction previously designated as an Additional Jurisdiction hereunder, Celestica shall have obtained the agreement in writing of a Lender located in the jurisdiction where such Consent Designated Subsidiary is residentone or more Lenders, to utilize, subject to the terms of this Agreement, a portion of the Revolving Facility Commitment of such Lender or its Affiliate Lenders to make Advances to under the Consent Designated Revolving Facility in the jurisdiction in which such Restricted Subsidiary is domiciled and each such Lender shall have delivered a notice to the Administrative Agent in the form of Schedule MM setting out, among other things, the name of the Affiliate of the Lender (each a “Consent Lender”) that will make Advances available in the Restricted Subsidiary’s jurisdiction and the Revolving Facility Commitment of the Affiliate to be available hereunder;
(iii) if such Restricted Subsidiary is not domiciled in a jurisdiction previously designated as an Additional Jurisdiction hereunder, Celestica shall have delivered a notice in the form of Schedule W to the Administrative Agent in which it confirms the Revolving Facility Commitment of each Consent Lender and reallocates the Revolving Facility Commitments of the Related Lenders of each Consent Lender; such that following the addition of the Consent Lender as a Lender hereunder, the aggregate Revolving Facility Commitments of the Consent Lender and its Related Lenders (after giving effect to the addition of the Consent Lender as a Lender) shall be equal to the aggregate Revolving Facility Commitments of the Related Lenders prior to the addition of the Consent Lender;
(iv) such Restricted Subsidiary, prior to becoming a Consent Designated Subsidiary, shall have executed and delivered to the Administrative Agent: (A) a Designated Subsidiary Agreement substantially in the form of Schedule F; (B) if it has not already done so, a Guarantee substantially in the form of Schedule H, with such changes as the Administrative Agent and the Consent Designated Subsidiary may reasonably require on the advice of their respective counsel to reflect local legal requirements; and (C) unless a Debt Rating Upgrade has occurred and no Trigger Event has ensued following such Debt Rating Upgrade, if it has not already done so, the other applicable Security Documents, with such changes as the Administrative Agent and the Consent Designated Subsidiary may reasonably require on the advice of their respective counsel to reflect local legal requirements; and
(ivv) the Restricted Subsidiary which is proposed to be designated as a Consent Designated Subsidiary shall have provided to the Administrative Agent such number of copies as the Administrative Agent may request of:
(A) a certified copy of the proposed Consent Designated Subsidiary’s Organic Documents;
(B) the resolutions authorizing it to enter into, execute and deliver the Designated Subsidiary Agreement, the Guarantee and the other applicable Security Documents, if applicable, and to perform its obligations thereunder;
(C) a certificate to the incumbency of its officers signing the Consent Designated Subsidiary Agreement, the Guarantee and other applicable Security Documents, if applicable;
(D) a certificate of status, good standing or like certificate with respect to such Consent Designated Subsidiary issued by appropriate government officials of the jurisdiction of its incorporation; and
(E) an opinion of counsel to the Consent Designated Subsidiary in form and substance satisfactory to the Lenders’ Counsel and the Administrative Agent, each acting reasonably.
(d) If a notice(s) in the form of Schedule M has been delivered pursuant to Section 7.1(c)(ii) and the Restricted Subsidiary referred to therein is designated as a Consent Designated Subsidiary, each party hereto hereby irrevocably authorizes the Administrative Agent to:
(i) insert the name of each Consent Lender identified in such notice(s) on Schedule A (who shall thereafter be an Other Jurisdiction Lender hereunder) and identify on Schedule A the jurisdiction in which such Consent Lender shall make Advances under the Revolving Facility hereunder (which shall thereafter be an Additional Jurisdiction hereunder);
(ii) amend Schedule B to set out the Revolving Facility Commitment of each Consent Lender and the revised Revolving Facility Commitment of its Related Lenders (as set out in the applicable notice delivered by Celestica pursuant to Section 7.1(c)(iii));
(iii) amend Schedule B to identify the maximum Revolving Facility Commitment of each Consent Lender, which shall be equal to the Consent Lender’s initial Revolving Facility Commitment; and
(div) affix an execution page to this Agreement which has been executed and delivered by each Consent Lender.
(e) Celestica may, from time to time, in conjunction with the delivery of the Officer’s Certificate pursuant to Section 2.5(g)(i) or the notice pursuant to Section 2.5(g)(iii), obtain the agreement of an Other Jurisdiction Lender and its Related Lenders to increase the maximum Revolving Facility Commitment of the Other Jurisdiction Lender set out in Schedule B, which agreement shall be evidenced by the delivery by such Other Jurisdiction Lender and its Related Lenders to the Administrative Agent of a notice in the form of Schedule X. Upon receipt of such notice, each party hereto irrevocably authorizes the Administrative Agent to amend Schedule B to identify the revised maximum Revolving Facility Commitment of such Other Jurisdiction Lender.
(f) Celestica may, from time to time, in conjunction with the delivery of the Officer’s Certificate pursuant to Section 2.5(g)(i) or the notice pursuant to Section 2.5(g)(iii), obtain the agreement of one or more Lenders, to utilize, subject to the terms of this Agreement, a portion of the Revolving Facility Commitment of such Lender(s) to make Advances under the Revolving Facility in an Additional Jurisdiction, which agreement shall be evidenced by the delivery by each such Lender of a notice in the form of Schedule Y setting out, among other things, the name of the Affiliate of the Lender that will make Advances available in the Additional Jurisdiction and the Revolving Facility Commitment of the Affiliate to be available hereunder. In conjunction with the delivery of such notice, Celestica shall deliver a notice in the form of Schedule Z to the Administrative Agent in which it confirms the Revolving Facility Commitment of each such Affiliate and reallocates the Revolving Facility Commitments of the Related Lenders of each Affiliate; such that following the addition of each Affiliate as a Lender hereunder, the aggregate Revolving Facility Commitments of each Affiliate and its Related Lenders (after giving effect to the addition of the Affiliate as a Lender) shall be equal to the aggregate Revolving Facility Commitments of the Related Lenders prior to the addition of the Affiliate. Upon receipt of such notices, each party hereto hereby irrevocably authorizes the Administrative Agent to:
(i) insert the name of each Affiliate identified in such notice(s) on Schedule A (who shall thereafter be an Other Jurisdiction Lender hereunder) and identify on Schedule A the Additional Jurisdiction in which such Affiliate shall make Advances hereunder;
(ii) amend Schedule B to set out the Revolving Facility Commitment of each Affiliate and the revised Revolving Facility Commitment of its Related Lenders (as set out in the applicable notice delivered by Celestica);
(iii) amend Schedule B to identify the maximum Revolving Facility Commitment of each Affiliate, which shall be equal to the Affiliate’s initial Revolving Facility Commitment; and
(iv) affix an execution page to this Agreement which has been executed and delivered by each Affiliate.
(g) Celestica may, from time to time and at any time hereafter, terminate the designation of a Designated Subsidiary as such by the delivery of written notice to the Administrative Agent and from and after the day which is five (5) Banking Days after receipt of such notice, the subject Subsidiary shall no longer be a Designated Subsidiary and shall have no further right or ability to obtain further Advances under the Revolving Facility.
Appears in 1 contract
Samples: Credit Agreement (Celestica Inc)
