Behold the following introductory clause. See the emphasized text? It defines a term individually and collectively—a practice I mocked in the preceding post—but it uses one defined term for the individually part and a different singular defined term for the collectively part.
THIS FIRST AMENDMENT TO LOAN AGREEMENT AND OTHER LOAN DOCUMENTS, dated as of March 19, 2019 (this “Amendment”), is by and among COLUMN FINANCIAL, INC., having an address at 11 Madison Avenue, New York, New York 10010 (“CF”), JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, having an address at 383 Madison Avenue, New York, New York 10179 (“JPM”) and MORGAN STANLEY BANK, N.A., having an address at 1585 Broadway, New York, New York 10036 (“MS”; together with CF and JPM and their respective successors and/or assigns, each a “Co-Lender” and, collectively, collectively “Lender”), EACH OF THE ENTITIES LISTED ON SCHEDULE I ATTACHED HERETO, each having its principal place of business at 3300 Enterprise Parkway, Beachwood, OH 44122 (individually and/or collectively, as the context may require, together with their respective successors and/or assigns, “Borrower”) and RVI CMA HOLDER LLC, a Delaware limited liability company having its principal place of business at 3300 Enterprise Parkway, Beachwood, OH 44122 (“Additional Obligor”).
I haven’t seen that before, but it’s just a variant of a broader practice, using a singular noun to refer to a group of companies or people. This same introductory clause features another example of that—the definition of Borrower.
I say the heck with this practice, in whatever form it comes. You’re dealing with different legal persons, so reflect reality and use a plural noun.
Here’s another introductory clause. It does the individually-and-collectively thing, using Borrower and Borrowers:
AMENDMENT NO. 8 TO CREDIT AGREEMENT (this “Amendment”), dated as of February 26, 2019, is entered into among BIO-REFERENCE LABORATORIES, INC., a New Jersey corporation (“Company”), the Subsidiary Borrowers party hereto (“Subsidiary Borrowers,” and together with Company , each a “Borrower” and, collectively, the “Borrowers”), the other Loan Parties party hereto, the Lenders party hereto, and JPMORGAN CHASE BANK, N.A., as the administrative agent for the Lenders (the “Administrative Agent”).
I see that JPMorgan Chase was a party to both contracts. I expect them to immediately convene a working group to explore this issue …
Bonus: If you want to see an example of someone screwing up whether a defined term applied singularly or collectively, see this post by the great Glenn D. West.
I’m assuming that example one is ‘bad’ and example two is ‘good’. Example two seems to be the right way to do it.
I’m with you on avoiding a singular short name to signify multiple entities, but I recognise the temptation to do it so as to avoid having to tweak the whole template that assumes a single ‘borrower’.
The practical danger is the creation of uncertainties. If the Lender has a remedy when ‘the Borrower’ breaches, is a breach by one a breach by all? That may be a poor example, but it points out the zone of danger.