Bankers’ Acceptances. 2.5.1 Subject to the terms and conditions of this Agreement, any Borrower may request a Borrowing by presenting drafts for acceptance and purchase as B/As by the Lender. Notwithstanding any other provision of this Agreement, to the extent the Lender is unable to accept drafts, the Lender may make an advance to the Borrower in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). The principal amount of a B/A Equivalent Loan shall be equal to the face amount of the applicable draft that would otherwise be issued to the Lender in connection therewith, and the provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by the Lender. The Lender shall not be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by the Borrower to the Lender in respect of each B/A accepted by the Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid to the Lender at the time of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it. 2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such B/As on the last day of the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As shall be deemed to have been converted on the last day of the Contract Period into a Canadian Prime Loan in an amount equal to the face amount of such B/As and the Borrower shall be deemed to have irrevocably requested such conversion without the execution of a Borrowing Request. 2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due to the Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, the Borrowers shall have no further liability in respect of such B/A and the Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waived.

Appears in 4 contracts

Samples: Credit Agreement (Brookfield Business Partners L.P.), Credit Agreement (Brookfield Business Corp), Credit Agreement (Brookfield Business Partners L.P.)

Bankers’ Acceptances. ~~2.5.1 Subject~~ (a) Notwithstanding anything to the contrary contained herein, any Local Fronting Lender may agree (in its sole discretion from time to time) to create bankers’ acceptances under its Currency Sublimit by way of the acceptance and discount of Drafts (the “Acceptances”) pursuant to this Section 6.9; provided, however, that no Local Fronting Lender shall have any obligation to create and/or discount Acceptances, regardless of any prior practice of doing so for the account of such Local Borrowing Subsidiary. Any Acceptances created pursuant to this Section 6.9 shall be denominated in the Denomination Currency for the relevant Local Fronting Lender (and not in Dollars), and shall be for such tenor and in such amount as may be mutually agreed upon by the relevant Local Fronting Lender and Local Borrowing Subsidiary; provided, however, that in no event shall any Acceptance mature after the date which is 30 days prior to the Multi-Currency Termination Date. (b) Unless the relevant Local Borrowing Subsidiary and Local Fronting Lender otherwise agree, the relevant Local Borrowing Subsidiary shall give to the relevant Local Fronting Lender not less than two Business Days’ prior written notice of its intent to borrow by way of Acceptances from any Local Fronting Lender which has agreed to accept and discount Drafts for the account of such Local Borrowing Subsidiary, which notice shall be accompanied by (i) a Draft which has been completed, executed and delivered by a duly authorized officer of such Local Borrowing Subsidiary and (ii) such other documents, instruments and certificates as such Local Fronting Lender reasonably may request; provided, however, that, after giving effect to the creation of such Acceptance, the Local Outstandings owing to such Local Fronting Lender shall not exceed the amount equal to its Currency Sublimit then in effect. On the requested borrowing date, the relevant Local Fronting Lender will accept such Draft and discount such accepted Draft in accordance with the provisions of Section 6.9(c). (c) Any Local Fronting Lender may, in its sole discretion, elect to discount Drafts of the relevant Local Borrowing Subsidiary on the date upon which such Local Fronting Lender accepts such Drafts by discounting such Draft at the rate per annum equal to the Local Rate (which may be a different rate than the Local Rate then payable on account of Local Loans in such Denomination Currency) then in effect plus the Applicable Margin then in effect for Local Rate Loans; provided, however, that, unless the relevant Local Fronting Lender and Local Borrowing Subsidiary otherwise agree, such discount shall be calculated by, first, discounting the aggregate face amount of such Draft at the rate per annum equal to the Local Rate then in effect and, second, discounting the result thereof at the rate per annum equal to the Applicable Margin then in effect for Local Rate Loans. Promptly following such discounting (and, in any event, on the date thereof), such Local Fronting Lender shall make available to such Local Borrowing Subsidiary the amount equal to the discounted face amount of such Draft in the manner in which such Local Fronting Lender makes available Local Loans pursuant to Section 6.3. (d) Each Local Borrowing Subsidiary hereby unconditionally agrees to pay to the relevant Local Fronting Lender the aggregate, undiscounted face amount of each Draft accepted by such Local Fronting Lender hereunder on the maturity date thereof (or on such earlier date upon which the obligations of such Local Borrowing Subsidiary under this Agreement shall become or shall have been declared due and payable pursuant to the terms and conditions of this Agreement, any Borrower may request a Borrowing by presenting drafts for acceptance and purchase as B/As by the Lender. Notwithstanding any other provision of this Agreement, to the extent the Lender is unable to accept drafts, the Lender may make an advance to the Borrower in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). ~~The principal~~ Interest shall accrue on any amount of owing pursuant to this Section 6.9(d) which is not paid when due (whether by scheduled maturity, mandatory prepayment, acceleration or otherwise) from the date such amount becomes due until paid in full at a ~~B/A Equivalent Loan shall be~~ fluctuating rate per annum equal to the ~~face amount of the applicable draft that~~ rate which would ~~otherwise~~ then be issued to the Lender in connection therewith, and the provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by the Lender. The Lender shall not be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears payable on any ~~B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid~~ overdue Local Rate Loans and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by such Local Borrowing Subsidiary upon demand by such Local Fronting Lender. (e) Each Multi-Currency Lender hereby unconditionally and irrevocably agrees to purchase undivided participating interests in the ~~Borrower~~ Acceptances created by each Local Fronting Lender in accordance with the provisions of Section 6.4. (f) Notwithstanding anything to the ~~Lender in respect of each B/A accepted~~ contrary contained herein, the indefeasible prepayment by the ~~Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid~~ relevant Local Borrowing Subsidiary to the relevant Local Fronting Lender ~~at the time~~ of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount all or ~~otherwise dispose~~ a portion of any or all B/As accepted and purchased by it. 2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such B/As on the last day of the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As outstanding Acceptance shall be deemed to ~~have been converted on~~ constitute a prepayment of such portion of such Acceptance for all purposes hereunder, regardless of whether the ~~last day~~ relevant Local Fronting Lender has distributed such amount to the holder of the Contract Period into a Canadian Prime Loan in an amount equal to the face amount of such B/As and the Borrower shall be deemed to have irrevocably requested such conversion without the execution of a Borrowing Requestunderlying Draft. 2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due to the Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, the Borrowers shall have no further liability in respect of such B/A and the Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waived.

Appears in 4 contracts

Samples: Revolving Credit Agreement (Revlon Consumer Products Corp), Revolving Credit Agreement (Revlon Consumer Products Corp), Revolving Credit Agreement (Revlon Consumer Products Corp)

Bankers’ Acceptances. ~~2.5.1~~ Subject to the terms and conditions of this Agreement, ~~any Borrower~~ the Commitments may be utilized, upon the request ~~a Borrowing~~ of Borrower, in addition to the Loans provided for by ~~presenting drafts~~ Section 2.2 and the issuance of Letters of Credit provided for by Section 2.4, for the acceptance ~~and purchase as B/As~~ by the ~~Lender. Notwithstanding any other provision~~ Lenders of this Agreement, to the extent the Lender is unable to accept drafts, the Lender may make an advance to the Borrower in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). The principal amount of a B/A Equivalent Loan shall be equal to the face amount of the applicable draft that would otherwise be issued to the Lender in connection therewith, and the provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the BorrowersBankers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly Acceptances issued by ~~the proper signing officers of such~~ Borrower~~. The Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the Lender;~~ , provided that ~~the aggregate amount thereof is equal to~~ in no event shall (i) the aggregate amount of all Bankers’ Acceptance Liabilities together with the aggregate principal amount of the Loans (excluding Bankers’ Acceptances and BA Loans) and the aggregate amount of all LC Exposure exceed the lesser of (A) the aggregate amount of the Borrowing Base then in effect and (B~~/As required~~ ) the aggregate amount of the Commitments of the Lenders, and (ii) any Bankers’ Acceptances have maturities of less than 30 days or more than 180 days from the Acceptance Date (and shall in no event mature on a date after the Maturity Date). The following additional provisions shall apply to Bankers’ Acceptances: (a) In order to facilitate and expedite the issuance and acceptance of Bankers’ Acceptances hereunder, Borrower agrees to the terms and conditions of the Power of Attorney with respect to the Bankers’ Acceptance attached hereto as Exhibit J. (b) When Borrower wishes to make a Borrowing by way of Bankers’ Acceptances, Borrower shall submit to the Administrative Agent prior written notice with respect to the issuance of the Bankers’ Acceptances (such written notice a “Bankers’ Acceptance Request”) by not later than 1:00 p.m., Toronto time, two (2) Business Days’ prior to the Acceptance Date. Each Bankers’ Acceptance Request shall be irrevocable and binding on Borrower. Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure by Borrower to fulfill or honor before the date specified as the Acceptance Date, the applicable conditions set forth in Article IV, if, as a result of such failure the requested Bankers’ Acceptance is not made on such date. Unless otherwise agreed among the Administrative Agent and the Lenders, the aggregate amount of all Bankers’ Acceptances issued on any Acceptance Date hereunder shall be accepted pro rata by all Lenders relative to their respective Applicable Percentage, rounded, upwards or downwards, as the case may be, to the nearest C$100,000. Upon receipt of a Bankers’ Acceptance Request, the Administrative Agent shall advise each Lender of the contents thereof. (c) Unless Borrower has notified the Administrative Agent in the Bankers’ Acceptance Request that Borrower intends to arrange the sale of the Bankers’ Acceptances which are the subject of such Bankers’ Acceptance Request (a “Borrower Arrangement”), on the Acceptance Date at 10:30 a.m., Toronto time, the Administrative Agent shall determine the Bankers’ Acceptance Rate for each of the Accepting Lenders. Not later than 2:00 p.m., Toronto time, each such Accepting Lender shall accept and ~~purchased~~ purchase its share of the Bankers’ Acceptances that are issued and shall make available to the Administrative Agent, in accordance with Section 2.5, the BA Net Proceeds of the purchase of Bankers’ Acceptances on such day by ~~the~~ such Lender. The ~~Lender~~ Administrative Agent shall ~~not be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct~~ transfer to Borrower those BA Net Proceeds of the ~~Lender or its officers, employees, agents or representatives. The Lender~~ Bankers’ Acceptances and shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such notify Borrower and ~~which are held~~ each such Lender by ~~the Lender and are not required~~ facsimile or telephone (if by telephone, to be ~~issued~~ confirmed subsequently in ~~accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts~~ writing) of the details of the issue, pursuant to a ~~Borrower to be accepted~~ notice in substantially the form attached hereto as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by the Borrower to the Lender in respect of each B/A accepted by the Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid to the Lender at the time of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As. 2.5.7 The Exhibit M. Each Accepting Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all ~~B/As~~ Bankers’ Acceptances accepted and purchased by it~~. 2.5.8 With~~ . On the Acceptance Date, Borrower shall pay each Accepting Lender and each Lender providing a BA Loan a Stamping Fee with respect to each ~~B/A Borrowing, at~~ Bankers’ Acceptance and each BA Loan and each Lender is hereby authorized to deduct such Stamping Fee prior to remitting the BA Net Proceeds to the Administrative Agent. For each Bankers’ Acceptance or ~~before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As~~BA Loan, the Stamping Fee payable by Borrower shall be the product obtained by multiplying: (i) the applicable Bankers’ Acceptance Stamping Fee specified in the definition of Applicable Rate in effect from time to time; by (ii) the Principal Amount of that ~~requested~~ Bankers’ Acceptance or BA Loan; and prorating that product for the ~~B/A shall notify~~ number of days in the ~~Lender by irrevocable written notice~~term from and including the Acceptance Date to but not including the BA Maturity Date of that Bankers’ Acceptance or the Interest Period for the BA Loan, ~~followed by a notice of rollover~~ as the case may be, on the ~~same day, if~~ basis of a year of 365 days. (d) [Intentionally omitted]. (e) On each day during the period commencing with the issuance by Borrower ~~intends to issue B/As on~~ of any Bankers’ Acceptance and until such ~~last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period~~Bankers’ Acceptance Liability shall have been paid by Borrower, the ~~Borrower~~ Commitment of each Accepting Lender that is able to extend credit by way of Bankers’ Acceptances shall ~~provide payment~~ be deemed to ~~the Lender~~ be utilized for all purposes of this Agreement in an amount equal to the ~~aggregate face amount~~ Principal Amount of such ~~B/As~~ Bankers’ Acceptance. The Commitment of any Lender providing a BA Loan rather than Bankers’ Acceptances shall be deemed utilized during this period in an amount equal to the Principal Amount of such BA Loan. (f) Borrower agrees to pay on the ~~last day~~ BA Maturity Date for each Bankers’ Acceptance, to the Administrative Agent for account of each Accepting Lender, an amount equal to the ~~Contract Period~~ Bankers’ Acceptance Liability for such Bankers’ Acceptance. Borrower hereby waives presentment for payment of Bankers’ Acceptances by the Accepting Lenders and any defense to payment of amounts due to an Accepting Lender in respect of a Bankers’ Acceptance which might exist by reason of such ~~B/As. If~~ Bankers’ Acceptance being held at maturity by the Accepting Lender which accepted it and agrees not to claim from such Lenders any days of grace for the payment at maturity of Bankers’ Acceptances. (g) In the event Borrower fails to notify the Administrative Agent in writing not later than 1:00 p.m., Toronto time, on the Business Day prior to any BA Maturity Date that Borrower intends to pay with Borrower’s own funds the Bankers’ Acceptance Liabilities due on such BA Maturity Date or fails to make such payment, ~~such maturing B/As~~ Borrower shall be deemed for all purposes to have ~~been converted on~~ given the ~~last day~~ Administrative Agent notice of ~~the Contract Period into~~ a borrowing of a Canadian Prime Loan in pursuant to Section 2.3 for an amount equal to the ~~face~~ Principal Amount of such Bankers’ Acceptances; provided that: (i) the BA Maturity Date for such Bankers’ Acceptances shall be considered to be the date of such borrowing; (ii) the proceeds of such Canadian Prime Loan shall be used to pay the amount of the Bankers’ Acceptance Liability due on such ~~B/As~~ BA Maturity Date; (iii) if after giving effect to such Canadian Prime Loan, a Borrowing Base Deficiency would exist, the Administrative Agent shall so advise Borrower and Borrower shall comply with the provisions of Section 2.10; (iv) each Lender which has made a maturing BA Loan (in accordance with Section 2.23(h) hereof) shall continue to extend credit to Borrower by way of a Canadian Prime Loan (without further advance of funds to Borrower) in the Principal Amount equal to its Applicable Percentage of the total amount of credit requested to be extended by Bankers’ Acceptances when the BA Loan was made; and (v) the Administrative Agent shall promptly and in any event within three (3) Business Days following the BA Maturity Date of such Bankers’ Acceptances, notify Borrower in writing of the making of such Canadian Prime Loan pursuant to this Section 2.23(g). (h) If, in the sole judgment of a Lender, such Lender is unable, as a result of applicable law or customary market practice, to extend credit by way of Bankers’ Acceptance in accordance with this Agreement, such Lender shall give notice to such effect to the Administrative Agent and Borrower prior to 1:00 p.m., Toronto time, on the date of the requested credit extension (which notice may, if so stated therein, remain in effect with respect to subsequent requests for extension of credit by way of Bankers’ Acceptance until revoked by notice to the Administrative Agent and Borrower) and shall make available to the Administrative Agent, in accordance with Section 2.1 hereof prior to 2:00 p.m., Toronto time, on the date of such requested credit extension a Canadian Dollar loan (a “BA Loan”) in the Principal Amount equal to such Lender’s Applicable Percentage of the total amount of credit requested to be extended by way of Bankers’ Acceptances. All BA Loans shall, if requested by the Lender making such a loan, be evidenced by promissory notes of the Borrower in form and substance satisfactory to the Borrower and such Lender, each acting reasonably. The Stamping Fee for that BA Loan shall be ~~deemed to~~ calculated on that Principal Amount. Such BA Loan shall have ~~irrevocably requested such conversion without the execution of a Borrowing Request. 2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due~~ an Interest Period equal to the term of the Bankers’ Acceptances for which it is a substitute and shall bear interest throughout such Interest Period applicable to that BA Loan at a rate per annum equal to the Bankers’ Acceptance Rate for such Bankers’ Acceptances. On the maturity date of the Bankers’ Acceptances issued concurrently with the advance of the BA Loan, Borrower shall pay to each Lender which made a BA Loan, in ~~respect~~ satisfaction of the BA Loan and accrued interest thereon, an amount equal to the Principal Amount of such BA Loan, failing which such Principal Amount shall be converted to a ~~B/A~~ Canadian Prime Loan. The amount of the proceeds of that BA Loan to be disbursed to Borrower on the Acceptance Date shall be the same amount as if that Lender had accepted and purchased ~~by it pursuant~~ its Lender’s Applicable Percentage of the requested Bankers’ Acceptances at a discount from the Principal Amount of that Bankers’ Acceptance calculated at a discount rate per annum equal to ~~this Agreement which might exist solely by reason~~ the Bankers’ Acceptance Rate for the term of such ~~B/A being held, at~~ Bankers’ Acceptances in the ~~maturity thereof, by~~ same manner that BA Net Proceeds are calculated; provided that the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount Principal Amount of such ~~B/A and, after such payment, the Borrowers shall have no further liability in respect of such B/A and the Lender~~ BA Loan shall be ~~entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing,~~ the ~~Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an~~ same amount ~~in cash equal to~~ as the face amount of the Bankers’ Acceptance which such Lender would have accepted but for this Section 2.23(h). (i) If Borrower notifies the Administrative Agent of a Borrower Arrangement, on the Acceptance Date of the Bankers’ Acceptances constituting a Borrower Arrangement: (i) Borrower shall obtain quotations from prospective purchasers regarding the sale of the Bankers’ Acceptances to be accepted by the Lenders, and shall, on or before 11:00 a.m., Toronto time, on such date, provide the Administrative Agent with all necessary information required by each Lender to enable each Lender to determine the Bankers’ Acceptance discount rate applicable to such issue, together with the identity of and the face amount of Bankers’ Acceptances to be purchased by each of the purchaser(s) of the Bankers’ Acceptances accepted by each Lender. In obtaining such quotes, Borrower shall offer each Lender the right to bid on the Bankers’ Acceptances accepted by it. The Lenders and the Administrative Agent shall not be responsible for any losses occasioned by the failure of Borrower to comply with its obligations under this paragraph and shall not be required to purchase any Bankers’ Acceptances on such Acceptance Date if Borrower has requested Borrower Arrangement; and (ii) on receipt from Borrower of the information referred to in paragraph (i), the Administrative Agent shall promptly notify each Lender of: (A) the Bankers’ Acceptance discount rate to be applicable to such issue; (B~~/As then outstanding. Such deposit~~ ) the proceeds to be received by such Lender on the sale of the Bankers’ Acceptances accepted by such Lender, based upon such Bankers’ Acceptance discount rate obtained by Borrower for each such Lender; and (C) the Stamping Fee payable to such Lender in connection with such issue. (j) [Intentionally omitted]. (k) If a Lender determines in good faith, which determination shall be ~~held~~ final, conclusive and binding upon Borrower, and notifies Borrower that, by reason of circumstances affecting the ~~Lender as collateral~~ money market: (i) there is no market for Bankers’ Acceptances generally or of a requested duration; (ii) the ~~payment and performance~~ demand for Bankers’ Acceptances is insufficient to allow the sale or trading of the ~~obligations~~ Bankers’ Acceptances created and purchased hereunder generally or in connection with a requested duration; or (iii) the Bankers’ Acceptance Rate does not accurately reflect the cost of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment funds of such ~~deposit, if mutually agreed,~~ Lender or the discount rate which ~~investments shall~~ would be ~~made at~~ applicable to a sale of Bankers’ Acceptances accepted by such Lender in the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waived.market; then:

Appears in 3 contracts

Samples: Credit Agreement (Lone Pine Resources Inc.), Credit Agreement (Lone Pine Resources Inc.), Credit Agreement (Forest Oil Corp)

Bankers’ Acceptances. ~~2.5.1 Subject~~ (a) Notwithstanding anything to the contrary contained herein, any Local Fronting Lender may agree (in its sole discretion from time to time) to create bankers’ acceptances under its Currency Sublimit by way of the acceptance and discount of Drafts (the “Acceptances”) pursuant to this Section 2.31; provided, however, that no Local Fronting Lender shall have any obligation to create and/or discount Acceptances, regardless of any prior practice of doing so for the account of such Local Borrowing Subsidiary. Any Acceptances created pursuant to this Section 2.31 shall be denominated in the Permitted Foreign Currency for the relevant Local Fronting Lender (and not in Dollars), and shall be for such tenor and in such amount as may be mutually agreed upon by the relevant Local Fronting Lender and Local Borrowing Subsidiary; provided, however, that in no event shall any Acceptance mature after the date which is 30 days prior to the Revolving Termination Date with respect to the Tranche A Revolving Facility (or such later date as the applicable Local Fronting Lender may agree in its sole discretion). (b) Unless the relevant Local Borrowing Subsidiary and Local Fronting Lender otherwise agree, the relevant Local Borrowing Subsidiary shall give to the relevant Local Fronting Lender not less than two Business Days’ prior written notice of its intent to borrow by way of Acceptances from any Local Fronting Lender which has agreed to accept and discount Drafts for the account of such Local Borrowing Subsidiary, which notice shall be accompanied by (i) a Draft which has been completed, executed and delivered by a duly authorized officer of such Local Borrowing Subsidiary and (ii) such other documents, instruments and certificates as such Local Fronting Lender reasonably may request; provided, however, that, after giving effect to the creation of such Acceptance, the Local Outstandings owing to such Local Fronting Lender shall not exceed the amount equal to its Currency Sublimit then in effect. On the requested borrowing date, the relevant Local Fronting Lender will accept such Draft and discount such accepted Draft in accordance with the provisions of Section 2.31(c). (c) Any Local Fronting Lender may, in its sole discretion, elect to discount Drafts of the relevant Local Borrowing Subsidiary on the date upon which such Local Fronting Lender accepts such Drafts by discounting such Draft at the rate per annum equal to the Local Rate (which may be a different rate than the Local Rate then payable on account of Local Loans in such Permitted Foreign Currency) then in effect plus the Applicable Margin then in effect for Local Rate Loans; provided, however, that, unless the relevant Local Fronting Lender and Local Borrowing Subsidiary otherwise agree, such discount shall be calculated by, first, discounting the aggregate face amount of such Draft at the rate per annum equal to the Local Rate then in effect and, second, discounting the result thereof at the rate per annum equal to the Applicable Margin then in effect for Local Rate Loans. Promptly following such discounting (and, in any event, on the date thereof), such Local Fronting Lender shall make available to such Local Borrowing Subsidiary the amount equal to the discounted face amount of such Draft in the manner in which such Local Fronting Lender makes available Local Loans pursuant to Section 2.5(b). (d) Each Local Borrowing Subsidiary hereby unconditionally agrees to pay to the relevant Local Fronting Lender the aggregate, undiscounted face amount of each Draft accepted by such Local Fronting Lender hereunder on the maturity date thereof (or on such earlier date upon which the obligations of such Local Borrowing Subsidiary under this Agreement shall become or shall have been declared due and payable pursuant to the terms and conditions of this Agreement, any Borrower may request a Borrowing by presenting drafts for acceptance and purchase as B/As by the Lender. Notwithstanding any other provision of this Agreement, to the extent the Lender is unable to accept drafts, the Lender may make an advance to the Borrower in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). ~~The principal~~ Interest shall accrue on any amount of owing pursuant to this Section 2.31(d) which is not paid when due (whether by scheduled maturity, mandatory prepayment, acceleration or otherwise) from the date such amount becomes due until paid in full at a ~~B/A Equivalent Loan shall be~~ fluctuating rate per annum equal to the ~~face amount of the applicable draft that~~ rate which would ~~otherwise~~ then be issued to the Lender in connection therewith, and the provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by the Lender. The Lender shall not be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears payable on any ~~B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid~~ overdue Local Rate Loans and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by such Local Borrowing Subsidiary upon demand by such Local Fronting Lender. (e) Each Tranche A Revolving Lender hereby unconditionally and irrevocably agrees to purchase undivided participating interests in the ~~Borrower~~ Acceptances created by each Local Fronting Lender in accordance with the provisions of Section 2.32. (f) Notwithstanding anything to the ~~Lender in respect of each B/A accepted~~ contrary contained herein, the indefeasible prepayment by the ~~Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid~~ relevant Local Borrowing Subsidiary to the relevant Local Fronting Lender ~~at the time~~ of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount all or ~~otherwise dispose~~ a portion of any or all B/As accepted and purchased by it. 2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such B/As on the last day of the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As outstanding Acceptance shall be deemed to ~~have been converted on~~ constitute a prepayment of such portion of such Acceptance for all purposes hereunder, regardless of whether the ~~last day~~ relevant Local Fronting Lender has distributed such amount to the holder of the Contract Period into a Canadian Prime Loan in an amount equal to the face amount of such B/As and the Borrower shall be deemed to have irrevocably requested such conversion without the execution of a Borrowing Requestunderlying Draft. 2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due to the Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, the Borrowers shall have no further liability in respect of such B/A and the Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waived.

Appears in 2 contracts

Samples: Asset Based Revolving Credit Agreement (Revlon Consumer Products Corp), Asset Based Revolving Credit Agreement (Revlon Consumer Products Corp)

Bankers’ Acceptances. ~~2.5.1~~ (a) Subject to the terms and conditions of this Agreement, ~~any~~ the Canadian Borrower may request a Multicurrency Revolving Credit Borrowing denominated in Canadian Dollars by presenting drafts for acceptance and purchase as B/As by the Lender. Notwithstanding any other provision of this Agreement, to the extent the Lender is unable to accept drafts, the Lender may make an advance to the Borrower in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). The principal amount of a B/A Equivalent Loan shall be equal to the face amount of the applicable draft that would otherwise be issued to the Lender in connection therewith, and the provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent LoansMulticurrency Revolving Credit Lenders. ~~2.5.2~~ (b) No Contract Period with respect to a B/A to be accepted ~~and~~ and, if applicable, purchased ~~under the Credit Facility~~ as a Multicurrency Revolving Loan shall extend beyond the Revolving Credit Maturity Date. All B/As and B/A Loans shall be denominated in Canadian Dollars. ~~2.5.3~~ (c) To facilitate availment of B/A ~~Borrowings (other than B/A Equivalent~~ Loans), ~~each~~ the Canadian Borrower hereby appoints ~~the~~ each Multicurrency Revolving Credit Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A ~~Borrowing~~Loan pursuant to Section 2.03 or 2.10), in handwriting or by facsimile or mechanical signature as and when deemed necessary by ~~the~~ such Multicurrency Revolving Credit Lender, blank forms of B/As in the form requested by ~~the~~ such Multicurrency Revolving Credit Lender. ~~In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each~~ The Canadian Borrower recognizes and agrees that all B/As signed and/or endorsed by ~~the~~ a Multicurrency Revolving Credit Lender on behalf of ~~such~~ the Canadian Borrower shall bind ~~such~~ the Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of ~~such~~ the Canadian Borrower. ~~The~~ Each Multicurrency Revolving Credit Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A ~~Borrowing~~Loan) to issue such B/As endorsed in blank in such face amounts as may be determined by ~~the~~ such Multicurrency Revolving Credit Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by ~~the~~ such Multicurrency Revolving Credit Lender. ~~The~~ No Multicurrency Revolving Credit Lender shall ~~not~~ be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of ~~the~~ such Multicurrency Revolving Credit Lender or its officers, employees, agents or representatives. ~~The~~ Each Multicurrency Revolving Credit Lender shall maintain a ~~record~~ record, which shall be made available to the Canadian Borrower upon its request, with respect to B/As (ai) received by it in blank hereunder, (bii) voided by it for any reason, (ciii) ~~accepted or~~ accepted and purchased by it hereunder, and (div) ~~cancelled~~ canceled at their respective maturities. On request by or on behalf of ~~any~~ the Canadian Borrower, ~~the~~ a Multicurrency Revolving Credit Lender shall cancel all forms of B/A As which have been pre-signed or pre-endorsed on behalf of ~~such~~ the Canadian Borrower and ~~which~~ that are held by ~~the~~ such Multicurrency Revolving Credit Lender and are not required to be issued in accordance with ~~such~~ the Canadian Borrower’s irrevocable notice. Alternatively, the Canadian Borrower agrees that, at the request of the Administrative Agent, the Canadian Borrower shall deliver to the Administrative Agent a “depository note” which complies with the requirements of the Depository Bills and Notes Act (Canada), and consents to the deposit of any such depository note in the book-based debt clearance system maintained by the Canadian Depository for Securities. ~~2.5.4~~ (d) Drafts of a the Canadian Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section ~~2.5~~2.26. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for ~~the~~ any Multicurrency Revolving Credit Lender or a the Canadian Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on the Canadian Borrower. (e) Promptly following the receipt of a ~~Borrower who requested such B/A. 2.5.5 In the case~~ Borrowing Request specifying a Multicurrency Revolving Credit Borrowing by way of B/~~A Borrowings~~A, the Administrative Agent shall so advise the Multicurrency Revolving Credit Lenders and shall advise each Multicurrency Revolving Credit Lender of the aggregate face amount of ~~each~~ the B/A to be accepted by it and the applicable Contract Period (which shall be identical for all Multicurrency Revolving Credit Lenders). In the case of Multicurrency Revolving Loans comprised of B/A Loans, the aggregate face amount of the B/A to be accepted by a Multicurrency Revolving Credit Lender shall be in a minimum aggregate amount of ~~Cdn$500,000~~ C$100,000 and shall be a whole multiple of ~~Cdn$50,000~~C$100,000, and such face amount shall be in the Multicurrency Revolving Credit Lenders’ pro rata portions of such Multicurrency Revolving Credit Borrowing, provided that the Administrative Agent may in its sole discretion increase or reduce any Multicurrency Revolving Credit Lender’s portion of such B/A Loan to the nearest C$100,000 without reducing the aggregate Multicurrency Revolving Credit Commitments. ~~2.5.6 Upon~~ (f) The Canadian Borrower may specify in a Borrowing Request pursuant to Section 2.03 or 2.10 that it desires that any B/A requested by such Borrowing Request be purchased by the Multicurrency Revolving Credit Lenders, in which case the Multicurrency Revolving Credit Lenders shall, upon acceptance of a B/A by ~~the~~ a Multicurrency Revolving Credit Lender, ~~the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the~~ purchase ~~of,~~ each B/A from the Canadian Borrower at the Discount Rate for such Multicurrency Revolving Credit Lender applicable to such B/A accepted by it and ~~shall pay~~ provide to the Administrative Agent the Discount Proceeds to for the ~~Borrower in respect thereof~~account of the Canadian Borrower. An The Acceptance Fee ~~shall be~~ payable by the Canadian Borrower to ~~the~~ a Multicurrency Revolving Credit Lender under Section 2.06(d) in respect of each B/A accepted by ~~the~~ such Multicurrency Revolving Credit Lender ~~and such Acceptance Fee~~ shall ~~either~~ be set off against and deducted from the Discount Proceeds payable by ~~the~~ such Multicurrency Revolving Credit Lender under this Section ~~2.5.6 or paid to the Lender at the time of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As~~2.26. ~~2.5.7 The~~ (g) Each Multicurrency Revolving Credit Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it. ~~2.5.8 With respect~~ (h) If a Multicurrency Revolving Credit Lender is not a chartered bank under the Bank Act (Canada) or if a Multicurrency Revolving Credit Lender notifies the Administrative Agent in writing that it is otherwise unable to ~~each~~ accept Bankers’ Acceptances, such Multicurrency Revolving Credit Lender will, instead of accepting and purchasing Bankers’ Acceptances, make an advance (a “B/A ~~Borrowing, at or before 10:00 a.m. one Business Day before~~ Equivalent Loan”) to the ~~last day of~~ Canadian Borrower in the ~~Contract Period~~ amount and for the same term as the draft that such Multicurrency Revolving Credit Lender would otherwise have been required to accept and purchase hereunder. Each such Multicurrency Revolving Credit Lender will provide to the Administrative Agent the Discount Proceeds of such B/~~As,~~ A Equivalent Loan for the ~~Borrower that requested~~ account of the Canadian Borrower. Each such B/A Equivalent Loan will bear interest at the same rate that would result if such Multicurrency Revolving Credit Lender had accepted (and been paid an Acceptance Fee) and purchased (on a discounted basis at the Discount Rate) a Bankers’ Acceptance for the relevant Contract Period (it being the intention of the parties that each such B/A Equivalent Loan shall ~~notify~~ have the ~~Lender by irrevocable written notice, followed by a notice of rollover~~ same economic consequences for the Multicurrency Revolving Credit Lenders and the Canadian Borrower as the Bankers’ Acceptance which such B/A Equivalent Loan replaces). All such interest shall be paid in advance on the ~~same day, if the Borrower intends to issue~~ date such B/~~As on such last day of~~ A Equivalent Loan is made, and will be deducted from the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face principal amount of such B/As A Equivalent Loan in the same manner in which the deduction based on the ~~last day~~ Discount Rate and the applicable Acceptance Fee of ~~the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As shall~~ a Bankers’ Acceptance would be ~~deemed to have been converted on the last day of the Contract Period into a Canadian Prime Loan in an amount equal to~~ deducted from the face amount of ~~such B/As and~~ the ~~Borrower shall be deemed to have irrevocably requested such conversion without the execution of a Borrowing Request~~Bankers’ Acceptance. ~~2.5.9~~ (i) The ~~Borrowers waive~~ Canadian Borrower waives presentment for payment and any other ~~defence~~ defense to payment of any amounts due to ~~the~~ a Multicurrency Revolving Credit Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by ~~the~~ such Multicurrency Revolving Credit Lender in its own right, and the ~~Borrowers agree~~ Canadian Borrower agrees not to claim any days of grace if ~~the~~ such Multicurrency Revolving Credit Lender, as holder, claims payment from or sues the ~~Borrowers~~ Canadian Borrower on the B/A for payment of the amount payable by the ~~Borrowers~~ Canadian Borrower thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Canadian Borrower ~~who requested such B/A~~ shall pay the Multicurrency Revolving Credit Lender that has accepted and purchased ~~such~~ a B/A or advanced a B/A Equivalent Loan the full face amount of such B/A or B/A Equivalent Loan, as the case may be, and, after such payment, the ~~Borrowers~~ Canadian Borrower shall have no further liability in respect of such B/A and ~~the~~ such Multicurrency Revolving Credit Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. ~~2.5.10 If~~ (j) Except as required by any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Multicurrency Revolving Credit Lender as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of upon the occurrence of an Event of Default, ~~such amount (~~no B/A Loan may be repaid by the Canadian Borrower prior to the ~~extent not applied~~ expiry date of the Contract Period applicable to such B/A Loan; provided, however, that any B/A Loan may be defeased as ~~aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waived~~provided in Section 2.12(a).

Appears in 2 contracts

Samples: Credit Agreement (Cb Richard Ellis Group Inc), Credit Agreement (Cb Richard Ellis Group Inc)

Bankers’ Acceptances. 2.5.1 Subject to the terms and conditions of this Agreement, any Borrower may request a Borrowing by presenting drafts for acceptance and purchase as B/As by the Lender. Notwithstanding any other provision of this Agreement, to the extent the Lender is unable to accept drafts, the Lender may make an advance to the Borrower in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). The principal amount of a B/A Equivalent Loan shall be equal to the face amount of the applicable draft that would otherwise be issued to the Lender in connection therewith, and the provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under ~~the~~ a Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by the Lender. The Lender shall not be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by the Borrower to the Lender in respect of each B/A accepted by the Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid to the Lender at the time of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it. 2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As, the Borrower ~~that~~ who requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such B/As on the last day of the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As shall be deemed to have been converted on the last day of the Contract Period into a Canadian Prime Loan in an amount equal to the face amount of such B/As and the Borrower shall be deemed to have irrevocably requested such conversion without the execution of a Borrowing Request. 2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due to the Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, the Borrowers shall have no further liability in respect of such B/A and the Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waived.

Appears in 2 contracts

Samples: Credit Agreement (Brookfield Business Partners L.P.), Credit Agreement (Brookfield Business Partners L.P.)

Bankers’ Acceptances. ~~2.5.1 Subject~~ With respect to ~~the terms~~ each draft accepted and ~~conditions of this Agreement, any Borrower may request~~ discounted for a ~~Borrowing by presenting drafts for acceptance and purchase as B/As~~ Borrower's account by the ~~Lender. Notwithstanding any other provision of this Agreement~~Acceptance Bank, to the extent the Lender is unable to accept drafts, the Lender may make an advance to the Borrower in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). The principal amount of a B/A Equivalent Loan shall be equal to the face amount of the applicable draft that would otherwise be issued to the Lender in connection therewith, and the provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of the Lenders, that (i) each such ~~Borrower shall bind~~ draft is an Eligible Draft; (ii) each such ~~Borrower as fully and effectually as if signed in~~ draft will grow out of one or more transactions involving the ~~handwriting~~ importation or exportation of ~~and duly issued by~~ goods between two countries or the ~~proper signing officers~~ domestic shipment of ~~such Borrower. The Lender is hereby authorized (in accordance with a Borrowing Request relating~~ goods within the United States pursuant to a ~~B/A Borrowing) to issue such B/As endorsed~~ contract in blank in such face amounts as may be determined by the Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by the Lender. The Lender shall not be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force existence at the time of creation of such ~~issuance and any~~ Bankers' Acceptance; (iii) each such Bdraft will finance a current shipment of goods; (iv) each such draft of such Borrower as exporter/~~A so signed shall be binding~~ seller will have a tenor reasonably commensurate with usual credit terms or six months, whichever is shorter; (v) each such draft of such Borrower as importer/ purchaser will have a tenor reasonably commensurate with the anticipated time of receipt of the goods plus the anticipated time for preparing the goods for distribution into the channels of trade or thirty (30) days, whichever is shorter; (vi) on ~~a Borrower who requested such B/A. 2.5.5 In~~ the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by the Borrower to the Lender in respect of each B/A accepted by the Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid to the Lender at the time date of acceptance of such ~~B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold~~draft, ~~sell, rediscount~~ no other financing is or otherwise dispose of any or all B/As accepted and purchased by it. 2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such B/As on the last day of the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As shall will be deemed to have been converted on the last day of the Contract Period into a Canadian Prime Loan in an amount equal to the face amount of such B/As and the Borrower shall be deemed to have irrevocably requested such conversion without the execution of a Borrowing Request. 2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due to the Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, the Borrowers shall have no further liability outstanding in respect of such ~~B/A~~ transaction during the period from the date of such draft until the maturity thereof; (vii) all necessary licenses for the exportation, importation and payment of the purchase price and related costs of shipment will have been obtained; (viii) a description of goods being shipped, the actual or anticipated date of shipment, value of the shipment and the ~~Lender shall~~ addresses to which and from which shipment will be ~~entitled~~ made, has been furnished to ~~all benefits of~~the Acceptance Bank for each such transaction; (ix) additional information about each such transaction, including documents or copies of documents, will be furnished promptly upon such Acceptance Bank's request and ~~be responsible for all payments due to third parties under~~(x) on the date of acceptance of such draft, such ~~B/A. 2.5.10 If any Event of Default shall occur and~~ goods will be ~~continuing, the Borrowers shall deposit in an interest bearing account with the Lender,~~ in the ~~name~~ channels of ~~the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall~~ trade and no other financing will be ~~held by the Lender as collateral~~ existence for ~~the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over~~ such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waivedtransaction.

Appears in 2 contracts

Samples: Credit Agreement (Baker J Inc), Credit Agreement (Baker J Inc)

Bankers’ Acceptances. ~~2.5.1~~ (a) Subject to the terms and conditions of this Agreement, ~~any~~ the Canadian Borrower may request a Multicurrency Revolving Credit Borrowing denominated in Canadian Dollars by presenting drafts for acceptance and purchase as B/As by the Lender. Notwithstanding any other provision of this Agreement, to the extent the Lender is unable to accept drafts, the Lender may make an advance to the Borrower in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). The principal amount of a B/A Equivalent Loan shall be equal to the face amount of the applicable draft that would otherwise be issued to the Lender in connection therewith, and the provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent LoansMulticurrency Revolving Credit Lenders. ~~2.5.2~~ (b) No Contract Period with respect to a B/A to be accepted ~~and~~ and, if applicable, purchased ~~under the Credit Facility~~ as a Multicurrency Revolving Loan shall extend beyond the Revolving Credit Maturity Date. All B/As and B/A Loans shall be denominated in Canadian Dollars. ~~2.5.3~~ (c) To facilitate availment of B/A ~~Borrowings (other than B/A Equivalent~~ Loans), ~~each~~ the Canadian Borrower hereby appoints ~~the~~ each Multicurrency Revolving Credit Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A ~~Borrowing~~Loan pursuant to Section 2.03 or 2.10), in handwriting or by facsimile or mechanical signature as and when deemed necessary by ~~the~~ such Multicurrency Revolving Credit Lender, blank forms of B/As in the form requested by ~~the~~ such Multicurrency Revolving Credit Lender. ~~In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each~~ The Canadian Borrower recognizes and agrees that all B/As signed and/or endorsed by ~~the~~ a Multicurrency Revolving Credit Lender on behalf of ~~such~~ the Canadian Borrower shall bind ~~such~~ the Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of ~~such~~ the Canadian Borrower. ~~The~~ Each Multicurrency Revolving Credit Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A ~~Borrowing~~Loan) to issue such B/As endorsed in blank in such face amounts as may be determined by ~~the~~ such Multicurrency Revolving Credit Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by ~~the~~ such Multicurrency Revolving Credit Lender. ~~The~~ No Multicurrency Revolving Credit Lender shall ~~not~~ be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of ~~the~~ such Multicurrency Revolving Credit Lender or its officers, employees, agents or representatives. ~~The~~ Each Multicurrency Revolving Credit Lender shall maintain a ~~record~~ record, which shall be made available to the Canadian Borrower upon its request, with respect to B/As (ai) received by it in blank hereunder, (bii) voided by it for any reason, (ciii) ~~accepted or~~ accepted and purchased by it ~~hereunder,~~ hereunder and (div) ~~cancelled~~ canceled at their respective maturities. On request by or on behalf of ~~any~~ the Canadian Borrower, ~~the~~ a Multicurrency Revolving Credit Lender shall cancel all forms of B/A As which have been pre-signed or pre-endorsed on behalf of ~~such~~ the Canadian Borrower and ~~which~~ that are held by ~~the~~ such Multicurrency Revolving Credit Lender and are not required to be issued in accordance with ~~such~~ the Canadian Borrower’s irrevocable notice. Alternatively, the Canadian Borrower agrees that, at the request of the Administrative Agent, the Canadian Borrower shall deliver to the Administrative Agent a “depository note” which complies with the requirements of the Depository Bills and Notes Act (Canada), and consents to the deposit of any such depository note in the book-based debt clearance system maintained by the Canadian Depository for Securities. ~~2.5.4~~ (d) Drafts of a the Canadian Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section ~~2.5~~2.24. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for ~~the~~ any Multicurrency Revolving Credit Lender or a the Canadian Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on the Canadian Borrower. (e) Promptly following the receipt of a ~~Borrower who requested such B/A. 2.5.5 In the case~~ Borrowing Request specifying a Multicurrency Revolving Credit Borrowing by way of B/~~A Borrowings~~A, the Administrative Agent shall so advise the Multicurrency Revolving Credit Lenders and shall advise each Multicurrency Revolving Credit Lender of the aggregate face amount of ~~each~~ the B/A to be accepted by it and the applicable Contract Period (which shall be identical for all Multicurrency Revolving Credit Lenders). In the case of Multicurrency Revolving Loans comprised of B/A Loans, the aggregate face amount of the B/A to be accepted by a Multicurrency Revolving Credit Lender shall be in a minimum aggregate amount of ~~Cdn$500,000~~ C$100,000 and shall be a whole multiple of ~~Cdn$50,000~~C$100,000, and such face amount shall be in the Multicurrency Revolving Credit Lenders’ pro rata portions of such Multicurrency Revolving Credit Borrowing, provided that the Administrative Agent may in its sole discretion increase or reduce any Multicurrency Revolving Credit Lender’s portion of such B/A Loan to the nearest C$100,000 without reducing the aggregate Multicurrency Revolving Credit Commitments. ~~2.5.6 Upon~~ (f) The Canadian Borrower may specify in a Borrowing Request pursuant to Section 2.03 or 2.10 that it desires that any B/A requested by such Borrowing Request be purchased by the Multicurrency Revolving Credit Lenders, in which case the Multicurrency Revolving Credit Lenders shall, upon acceptance of a B/A by ~~the~~ a Multicurrency Revolving Credit Lender, ~~the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the~~ purchase ~~of,~~ each B/A from the Canadian Borrower at the Discount Rate for such Multicurrency Revolving Credit Lender applicable to such B/A accepted by it and ~~shall pay~~ provide to the Administrative Agent the Discount Proceeds to for the ~~Borrower in respect thereof~~account of the Canadian Borrower. An The Acceptance Fee ~~shall be~~ payable by the Canadian Borrower to ~~the~~ a Multicurrency Revolving Credit Lender under Section 2.06(d) in respect of each B/A accepted by ~~the~~ such Multicurrency Revolving Credit Lender ~~and such Acceptance Fee~~ shall ~~either~~ be set off against and deducted from the Discount Proceeds payable by ~~the~~ such Multicurrency Revolving Credit Lender under this Section ~~2.5.6 or paid to the Lender at the time of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As~~2.24. ~~2.5.7 The~~ (g) Each Multicurrency Revolving Credit Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it. ~~2.5.8 With respect~~ (h) If a Multicurrency Revolving Credit Lender is not a chartered bank under the Bank Act (Canada) or if a Multicurrency Revolving Credit Lender notifies the Administrative Agent in writing that it is otherwise unable to ~~each~~ accept Bankers’ Acceptances, such Multicurrency Revolving Credit Lender will, instead of accepting and purchasing Bankers’ Acceptances, make an advance (a “B/A ~~Borrowing, at or before 10:00 a.m. one Business Day before~~ Equivalent Loan”) to the ~~last day of~~ Canadian Borrower in the ~~Contract Period~~ amount and for the same term as the draft that such Multicurrency Revolving Credit Lender would otherwise have been required to accept and purchase hereunder. Each such Multicurrency Revolving Credit Lender will provide to the Administrative Agent the Discount Proceeds of such B/~~As,~~ A Equivalent Loan for the ~~Borrower that requested~~ account of the Canadian Borrower. Each such B/A Equivalent Loan will bear interest at the same rate that would result if such Multicurrency Revolving Credit Lender had accepted (and been paid an Acceptance Fee) and purchased (on a discounted basis at the Discount Rate) a Bankers’ Acceptance for the relevant Contract Period (it being the intention of the parties that each such B/A Equivalent Loan shall ~~notify~~ have the ~~Lender by irrevocable written notice, followed by a notice of rollover~~ same economic consequences for the Multicurrency Revolving Credit Lenders and the Canadian Borrower as the Bankers’ Acceptance which such B/A Equivalent Loan replaces). All such interest shall be paid in advance on the ~~same day, if the Borrower intends to issue~~ date such B/~~As on such last day of~~ A Equivalent Loan is made, and will be deducted from the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face principal amount of such B/As A Equivalent Loan in the same manner in which the deduction based on the ~~last day~~ Discount Rate and the applicable Acceptance Fee of ~~the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As shall~~ a Bankers’ Acceptance would be ~~deemed to have been converted on the last day of the Contract Period into a Canadian Prime Loan in an amount equal to~~ deducted from the face amount of ~~such B/As and~~ the ~~Borrower shall be deemed to have irrevocably requested such conversion without the execution of a Borrowing Request~~Bankers’ Acceptance. ~~2.5.9~~ (i) The ~~Borrowers waive~~ Canadian Borrower waives presentment for payment and any other ~~defence~~ defense to payment of any amounts due to ~~the~~ a Multicurrency Revolving Credit Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by ~~the~~ such Multicurrency Revolving Credit Lender in its own right, and the ~~Borrowers agree~~ Canadian Borrower agrees not to claim any days of grace if ~~the~~ such Multicurrency Revolving Credit Lender, as holder, claims payment from or sues the ~~Borrowers~~ Canadian Borrower on the B/A for payment of the amount payable by the ~~Borrowers~~ Canadian Borrower thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Canadian Borrower ~~who requested such B/A~~ shall pay the Multicurrency Revolving Credit Lender that has accepted and purchased ~~such~~ a B/A or advanced a B/A Equivalent Loan the full face amount of such B/A or B/A Equivalent Loan, as the case may be, and, after such payment, the ~~Borrowers~~ Canadian Borrower shall have no further liability in respect of such B/A and ~~the~~ such Multicurrency Revolving Credit Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. ~~2.5.10 If~~ (j) Except as required by any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Multicurrency Revolving Credit Lender as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of upon the occurrence of an Event of Default, ~~such amount (~~no B/A Loan may be repaid by the Canadian Borrower prior to the ~~extent not applied~~ expiry date of the Contract Period applicable to such B/A Loan; provided, however, that any B/A Loan may be defeased as ~~aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waived~~provided in Section 2.12(a).

Appears in 2 contracts

Samples: Credit Agreement (Cbre Group, Inc.), Amendment and Restatement Agreement (Cbre Group, Inc.)

Bankers’ Acceptances. ~~2.5.1 Subject to the terms and conditions of this Agreement, any Borrower~~ (a) The Borrowers may ~~request a Borrowing by presenting drafts~~ issue Bankers’ Acceptances denominated in Canadian Dollars for acceptance and purchase ~~as B/As~~ by the ~~Lender. Notwithstanding any other provision of this Agreement, to the extent the Lender is unable to accept drafts, the Lender may make an advance to the Borrower~~ Revolving Lenders in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). The principal amount of a B/A Equivalent Loan shall be equal to the face amount of the applicable draft that would otherwise be issued to the Lender in connection therewith, and accordance with the provisions of Section 2.01, Section 2.03 and this ~~Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in~~ Section ~~2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans~~2.23. ~~2.5.2~~ (b) Each Bankers’ Acceptance shall have a Contract Period of approximately 30, 60 or 90 days or such other terms as available. No Contract Period ~~with respect to a B/A to be accepted and purchased under the Credit Facility~~ shall extend beyond the Revolving Credit Maturity Date. If such Contract Period would otherwise end on a day that is not a Business Day, such Contract Period shall end on the next preceding day that is a Business Day. ~~2.5.3~~ (c) On each Borrowing date on which Bankers’ Acceptances are to be accepted, the Administrative Agent shall advise the Borrower Agent as to the Administrative Agent’s determination of the applicable Discount Rate for the Bankers’ Acceptances which any of the Revolving Lenders have agreed to purchase. (d) Each Revolving Lender agrees to purchase a Bankers’ Acceptance accepted by it. The applicable Borrower shall sell, and such Revolving Lender shall purchase, the Bankers’ Acceptance at the applicable Discount Rate. Such Revolving Lender shall provide to the Canadian Funding Office the Discount Proceeds less the Acceptance Fee payable by the applicable Borrower with respect to such Bankers’ Acceptance. Such proceeds will then be made available to the applicable Borrower by the Administrative Agent crediting an account as directed by such Borrower with the aggregate of the amounts made available to the Administrative Agent by such Revolving Lenders and in like funds as received by the Administrative Agent. (e) Each Revolving Lender may from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances accepted and purchased by it. (f) To facilitate ~~availment~~ Borrowings denominated in Canadian Dollars under the Revolving Facility to the Borrowers by way of B/~~A Borrowings (other than B/A Equivalent Loans)~~As, the Borrowers hereby appoint each ~~Borrower hereby appoints the~~ Revolving Lender as its attorney to sign and endorse on its ~~behalf (in accordance with a Borrowing Request relating to a B/A Borrowing)~~behalf, in handwriting or by facsimile or mechanical signature as and when deemed necessary by ~~the~~ such Revolving Lender, blank forms of B/As in reasonably acceptable to the ~~form requested by the Lender~~Borrower Agent. In this respect, it is ~~the Borrowers’~~ each Revolving Lender’s responsibility to ~~furnish the Lender with~~ maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As required to be accepted and purchased by any Revolving Lender and which are signed and/or endorsed on its behalf by ~~the~~ a Revolving Lender ~~on behalf of such Borrower~~ shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. ~~The~~ Each Revolving Lender is hereby authorized ~~(in accordance with a Borrowing Request relating to a B/A Borrowing)~~ to issue such B/As endorsed in blank in such face amounts as may be determined by ~~the~~ such Revolving Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by ~~the~~ such Revolving Lender. ~~The~~ No Revolving Lender shall ~~not~~ be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except ~~for~~ the gross negligence or ~~wilful~~ willful misconduct of ~~the~~ such Revolving Lender or its officers, employees, agents or representatives. ~~The~~ On request by the Borrower Agent, each Revolving Lender shall cancel all forms of B/As which have been pre-signed or pre-endorsed by or on behalf of such Borrower and which are held by such Revolving Lender and have not yet been issued in accordance herewith. Each Revolving Lender shall maintain a record with respect to B/As ~~(a) received~~ held by it in blank hereunder, ~~(b)~~ voided by it for any reason, ~~(c) accepted or~~ accepted and purchased by it hereunder, and ~~(d)~~ cancelled at their respective maturities. ~~On request by or on behalf of any Borrower,~~ Each Revolving Lender agrees to provide such records to the ~~Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such~~ Borrower ~~and which are held by~~ Agent at the ~~Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice~~Borrowers’ expense upon request. ~~2.5.4~~ (g) Drafts of drawn by a Borrower to be accepted as ~~B/As hereunder~~ Bankers’ Acceptances shall be signed ~~as set forth in this~~ by a duly authorized officer or officers of such Borrower or by its attorneys, including attorneys appointed pursuant to Section ~~2.5~~2.21(f) above. Notwithstanding that any ~~person~~ Person whose signature appears on any ~~B/A~~ Bankers’ Acceptance may no longer be an authorized signatory for ~~the Lender or~~ a ~~Borrower~~ Borrower, as applicable, at the ~~date~~ time of issuance of a ~~B/A~~Bankers’ Acceptance, ~~such~~ that signature shall nevertheless be valid and sufficient for all purposes as if ~~such~~ the authority had remained in force at the time of ~~such~~ issuance and any ~~such B/A~~ Bankers’ Acceptance so signed shall be binding on such Borrower. (h) The Administrative Agent, promptly following receipt of a ~~Borrower who requested~~ notice of Borrowing, continuation or conversion by way of Bankers’ Acceptances, shall advise the applicable Revolving Lenders of the notice and shall advise each such ~~B/A. 2.5.5 In~~ Revolving Lender of the ~~case~~ face amount of ~~B/A Borrowings~~Bankers’ Acceptances to be accepted by it and the applicable Contract Period (which shall be identical for all Revolving Lenders). The aggregate face amount of Bankers’ Acceptances to be accepted by a Revolving Lender shall be determined by the Administrative Agent by reference to such Revolving Lender’s Applicable Percentage of the issue of Bankers’ Acceptances, except that, if the face amount of a Bankers’ Acceptance which would otherwise be accepted by a Revolving Lender would not be CAD$100,000, or a whole multiple thereof, the face amount ~~of each B/A to~~ shall be ~~accepted~~ increased or reduced by the ~~Lender shall be~~ Administrative Agent in ~~a minimum aggregate amount of Cdn$500,000 and shall be a~~ its sole discretion to CAD$l00,000, or the nearest whole multiple of ~~Cdn$50,000~~that amount, as appropriate. ~~2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the~~ (i) Each Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by the Borrower to the Lender in respect of each B/A accepted by the Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid to the Lender at the time of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it. 2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such B/As on the last day of the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As shall be deemed to have been converted on the last day of the Contract Period into a Canadian Prime Loan in an amount equal to the face amount of such B/As and the Borrower shall be deemed to have irrevocably requested such conversion without the execution of a Borrowing Request. 2.5.9 The Borrowers waive waives presentment for payment and any other ~~defence~~ defense to payment of any amounts due to ~~the~~ a Revolving Lender in respect of a ~~B/A~~ Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason of ~~such B/A~~ the Bankers’ Acceptance being held, at the maturity thereof, by ~~the~~ such Revolving Lender in its own right~~, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder~~. On the ~~last day of the Contract Period~~ specified maturity date of a B/A, or ~~such earlier~~ the date ~~as may be required or permitted pursuant to the provisions~~ of any prepayment thereof in accordance with this Agreement, if earlier, the applicable Borrower ~~who requested such B/A~~ shall pay ~~the~~ to such Revolving Lender that has accepted ~~and purchased~~ such B/A the full face amount of such B/A ~~and~~(or shall make provision for payment by way of conversion or continuation in accordance with Section 2.07) in full and absolute satisfaction of its obligations with respect to such B/A, and after such payment, the ~~Borrowers~~ applicable Borrower shall have no further liability in respect of such B/A (except to the extent that any such payment is rescinded or reclaimed by operation of law or otherwise) and ~~the~~ such Revolving Lender shall be entitled to all benefits of, and will make and otherwise be responsible for all payments due to the redeeming holder or any third parties under, such B/A. ~~2.5.10 If any Event~~ (j) Whenever a Borrower requests a borrowing by way of ~~Default shall occur and be continuing~~Bankers’ Acceptances, ~~the Borrowers shall deposit in an interest bearing account with the Lender~~each Non BA Lender shall, in lieu of accepting and purchasing any B/As, make a Loan (a “BA Equivalent Loan”) to such Borrower in the ~~name~~ amount and for the same term as each Draft which such Lender would otherwise have been required to accept and purchase hereunder. Each such Lender will provide to the Administrative Agent the amount of Discount Proceeds of such BA Equivalent Loan for the account of the ~~Lender~~applicable Borrower in the same manner as such Lender would have provided the Discount Proceeds in respect of the Draft which such Lender would otherwise have been required to accept and purchase hereunder. Each such BA Equivalent Loan will bear interest at the same rate that would result if such Lender had accepted (and been paid an acceptance fee) and purchased (on a discounted basis) a B/A for the relevant Contract Period (it being the intention of the parties that each such BA Equivalent Loan shall have the same economic consequences for the relevant Lenders and the applicable Borrower as the B/A that such BA Equivalent Loan replaces). All such interest shall be paid in advance on the date such BA Equivalent Loan is made, an and will be deducted from the principal amount of such BA Equivalent Loan in ~~cash equal to~~ the same manner in which the discounted portion of a B/A would be deducted from the face amount of the B/A. Subject to the repayment requirements of this Agreement, on the last day of the relevant Contract Period for such BA Equivalent Loan, the applicable Borrower shall be entitled to convert each such BA Equivalent Loan into another type of Loan, or to roll over each such BA Equivalent Loan into another BA Equivalent Loan, all in accordance with the applicable provisions of this Agreement. Each Non BA Lender may, at its discretion, request in writing to the Administrative Agent and the applicable Borrower that BA Equivalent Loans made by it shall be evidenced by Discount Notes. (k) For greater certainty, all provisions of this Agreement that are applicable to B/As ~~then outstanding. Such deposit~~ shall also be ~~held by the Lender as collateral for the payment~~ applicable, mutatis mutandis, to BA Equivalent Loans, and ~~performance~~ notwithstanding any other provision of ~~the obligations of the Borrowers under~~ this Agreement~~. The Lender shall have exclusive dominion and control~~, ~~including the exclusive right~~ all references to principal amounts or any repayment or prepayment of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender any Loans that are applicable to ~~reimburse the Lender for payments made under~~ B/As ~~for which it has not been reimbursed and,~~ or BA Drawings shall be deemed to refer to the ~~extent not so applied, if~~ full face amount thereof in the ~~maturity~~ case of B/As and to the principal amount of any portion thereof consisting of BA Equivalent Loans. As set out in the definition of “Bankers’ Acceptances,” that term includes Discount Notes and all terms of this Agreement applicable to Bankers’ Acceptances (including the provisions of Section 2.23(f) relating to their execution by the Revolving Lenders under power of attorney) shall apply equally to Discount Notes evidencing BA Equivalent Loans with such changes as may in the context be necessary. For greater certainty: (i) the term of a Discount Note shall be the same as the Contract Period for Bankers’ Acceptances accepted and purchased on the same Borrowing date in respect of the ~~Loans has been accelerated~~same borrowing; (ii) an acceptance fee will be payable in respect of a Discount Note and shall be calculated at the same rate and in the same manner as the Acceptance Fee in respect of a Bankers’ Acceptance; and (iii) the Discount Rate applicable to a Discount Note shall be the Discount Rate applicable to Bankers’ Acceptances accepted by a Revolving Lender that is not a Schedule I Lender in accordance with the definition of “Discount Rate” on the same Borrowing date or date of continuation or conversion, ~~be applied to satisfy other obligations~~ as the case may be, in respect of the ~~Borrowers~~ same borrowing for the relevant Contract Period. (l) At the option of the applicable Borrower and any Revolving Lender, Bankers’ Acceptances under this ~~Agreement~~Agreement to be accepted by such Revolving Lender may be issued in the form of depository bills for deposit with The Canadian Depository for Securities Limited pursuant to the Depository Bills and Notes Act (Canada). If All depository bills so issued shall be governed by the ~~Borrowers are required~~ provisions of this Section 2.23. (m) Upon acceptance of a Bankers’ Acceptance by a Revolving Lender, the applicable Borrower shall pay to ~~provide an~~ the Administrative Agent on behalf of such Revolving Lender a fee (the “Acceptance Fee”) calculated on the face amount of ~~cash collateral hereunder as~~ the Bankers’ Acceptance at a ~~result~~ rate per annum equal to the Applicable Rate on the basis of the ~~occurrence~~ number of ~~an Event of Default,~~ days in the Contract Period for such ~~amount (~~Bankers’ Acceptance. Any adjustment to the ~~extent not applied~~ Acceptance Fee (including any adjustment as ~~aforesaid~~necessary to reflect the operation of Section 2.12(d)) shall be ~~returned~~ computed based on the number of days remaining in the Contract Period of such Bankers’ Acceptances from and including the effective date of any change in the Applicable Rate. Any increase in such Acceptance Fee shall be paid by the applicable Borrower to the ~~Borrowers within three Business Days after all Events~~ Administrative Agent on behalf of ~~Default have been cured or waived~~the Revolving Lenders on the last day of the Contract Period of the relevant Bankers’ Acceptance. Any decrease in such Acceptance Fee shall be paid by each Revolving Lender to the applicable Borrower, through the Administrative Agent, on the last day of the Contract Period of the relevant Bankers’ Acceptance.

Appears in 2 contracts

Samples: Credit Agreement (Delphi Technologies PLC), Credit Agreement (Delphi Technologies PLC)

Bankers’ Acceptances. ~~2.5.1 Subject~~ (i) If Bankers' Acceptances are outstanding hereunder, the Borrower shall, prior to the ~~terms~~ date of maturity of the then current Bankers' Acceptances, select and ~~conditions~~ irrevocably notify the Agent of ~~this Agreement~~the term to apply to any renewal or continuation thereof or of the intention of the Borrower to repay or convert such borrowing at the maturity of the related Bankers' Acceptances, ~~any Borrower may request~~ such notice to be given in accordance with Section 2.15(c). --------------- The Agent, promptly following receipt of a ~~Borrowing~~ notice in respect of Bankers' Acceptances as aforesaid, shall so advise the Revolving Credit Lenders and shall also advise each Revolving Credit Lender of the term (which shall be identical for all Revolving Credit Lenders) and the aggregate face amount of the Bankers' Acceptances to be accepted by ~~presenting drafts for acceptance and purchase as B/As~~ it. The aggregate face amount of the Bankers' Acceptances to be accepted by a Revolving Credit Lender shall be determined by the ~~Lender. Notwithstanding any other provision of this Agreement,~~ Agent by reference to the ~~extent~~ respective Commitments Percentages of the ~~Lender is unable to accept drafts~~Revolving Credit Loans Commitments of the Revolving Credit Lenders, the Lender may make an advance to the Borrower in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). The principal amount of a B/A Equivalent Loan shall be equal to except that, if the face amount of ~~the applicable draft that~~ a Bankers' Acceptance which would otherwise be ~~issued to the~~ accepted by a Revolving Credit Lender ~~in connection therewith~~would not be Cdn. $100,000 or a whole multiple thereof, ~~and the provisions of this Agreement~~ such face amount shall ~~apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment~~ be increased or reduced by the ~~Lender~~ Agent in its sole discretion to Cdn. $100,000 or the nearest whole multiple of ~~Discount Proceeds~~ that amount, as ~~provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans~~appropriate. ~~2.5.2 No Contract Period with respect~~ (ii) If the Borrower chooses to renew or continue a ~~B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment~~ borrowing outstanding by way of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As Bankers' Acceptances in the form ~~requested by~~ of Bankers' Acceptances, the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by the Lender. The Lender shall not be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct term of the ~~Lender or its officers, employees, agents or representatives. The Lender~~ new Bankers' Acceptances shall ~~maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted~~ commence on and ~~purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower,~~ include the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the Lender or a Borrower at the maturity date of ~~issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at~~ the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by the Borrower to the Lender in respect of each B/A accepted by the Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid to the Lender at the time of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it. 2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/Asrelative Bankers' Acceptances being renewed. If the Borrower fails to so notify the ~~Lender~~ Agent as provided in clause (i) of this Section 2.15(h) preceding, the Borrower shall be deemed ---------- --------------- to have notified the Agent of its intention to ~~issue B/As~~ convert the relevant borrowing by way of Bankers' Acceptances into a Revolving Credit Loan. (iii) The Borrower shall, by not later than 11:00 a.m. (Houston, Texas time) on ~~such last day~~ the maturity date of each Bankers' Acceptance, pay to Paribas Bank of Canada for the account of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such B/As on the last day of the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As shall be deemed to have been converted on the last day of the Contract Period into a Canadian Prime Loan in Revolving Credit Lenders an amount equal to the face amount of all Bankers' Acceptances accepted by the Revolving Credit Lenders and maturing on that day, by effecting such ~~B/As and~~ payment out of its own funds to Paribas Bank of Canada for the account of the Revolving Credit Lenders, by converting such Bankers' Acceptance into another form of borrowing hereunder or by renewing or continuing such Bankers' Acceptance in accordance with the provisions hereof. (iv) If the Borrower ~~shall be deemed~~ fails to ~~have irrevocably requested such conversion without the execution of a Borrowing Request. 2.5.9 The Borrowers waive presentment for payment and any other defence to~~ provide payment of any amounts due to the Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, the Borrowers shall have no further liability in respect of such B/A and the Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of ~~all B/As~~ a Bankers' Acceptance on its maturity date as required pursuant to clause (iii) of this Section 2.15(h) preceding, then ~~outstanding~~the Cdn. ~~Such deposit~~ Dollar ------------ --------------- amount of such failed payment shall be ~~held by the Lender as collateral~~ deemed for ~~the payment~~ all purposes of this Agreement to be and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be ~~made at the Borrowers’ risk and expense shall accumulate~~ treated in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder all respects as a ~~result~~ borrowing by way of ~~the occurrence of an Event of Default,~~ a Revolving Credit Loan constituting a Prime Rate Loan as and from such ~~amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waived~~maturity date.

Appears in 1 contract

Samples: Credit Agreement (Mail Well I Corp)

Bankers’ Acceptances. ~~2.5.1 Subject~~ 130 (a) Notwithstanding anything to the contrary contained herein, any Local Fronting Lender may agree (in its sole discretion from time to time) to create bankers’ acceptances under its Currency Sublimit by way of the acceptance and discount of Drafts (the “Acceptances”) pursuant to this Section 2.31; provided, however, that no Local Fronting Lender shall have any obligation to create and/or discount Acceptances, regardless of any prior practice of doing so for the account of such Local Borrowing Subsidiary. Any Acceptances created pursuant to this Section 2.31 shall be denominated in the Permitted Foreign Currency for the relevant Local Fronting Lender (and not in Dollars), and shall be for such tenor and in such amount as may be mutually agreed upon by the relevant Local Fronting Lender and Local Borrowing Subsidiary; provided, however, that in no event shall any Acceptance mature after the date which is 30 days prior to the Revolving Termination Date with respect to the Tranche A Revolving Facility (or such later date as the applicable Local Fronting Lender may agree in its sole discretion). (b) Unless the relevant Local Borrowing Subsidiary and Local Fronting Lender otherwise agree, the relevant Local Borrowing Subsidiary shall give to the relevant Local Fronting Lender not less than two Business Days’ prior written notice of its intent to borrow by way of Acceptances from any Local Fronting Lender which has agreed to accept and discount Drafts for the account of such Local Borrowing Subsidiary, which notice shall be accompanied by (i) a Draft which has been completed, executed and delivered by a duly authorized officer of such Local Borrowing Subsidiary and (ii) such other documents, instruments and certificates as such Local Fronting Lender reasonably may request; provided, however, that, after giving effect to the creation of such Acceptance, the Local Outstandings owing to such Local Fronting Lender shall not exceed the amount equal to its Currency Sublimit then in effect. On the requested borrowing date, the relevant Local Fronting Lender will accept such Draft and discount such accepted Draft in accordance with the provisions of Section 2.31(c). (c) Any Local Fronting Lender may, in its sole discretion, elect to discount Drafts of the relevant Local Borrowing Subsidiary on the date upon which such Local Fronting Lender accepts such Drafts by discounting such Draft at the rate per annum equal to the Local Rate (which may be a different rate than the Local Rate then payable on account of Local Loans in such Permitted Foreign Currency) then in effect plus the Applicable Margin then in effect for Local Rate Loans; provided, however, that, unless the relevant Local Fronting Lender and Local Borrowing Subsidiary otherwise agree, such discount shall be calculated by, first, discounting the aggregate face amount of such Draft at the rate per annum equal to the Local Rate then in effect and, second, discounting the result thereof at the rate per annum equal to the Applicable Margin then in effect for Local Rate Loans. Promptly following such discounting (and, in any event, on the date thereof), such Local Fronting Lender shall make available to such Local Borrowing Subsidiary the amount equal to the discounted face amount of such Draft in the manner in which such Local Fronting Lender makes available Local Loans pursuant to Section 2.5(b). (d) Each Local Borrowing Subsidiary hereby unconditionally agrees to pay to the relevant Local Fronting Lender the aggregate, undiscounted face amount of each Draft accepted by such Local Fronting Lender hereunder on the maturity date thereof (or on such earlier date upon which the obligations of such Local Borrowing Subsidiary under this Agreement shall |US-DOCS\115543490.9|| become or shall have been declared due and payable pursuant to the terms and conditions of this Agreement, any Borrower may request a Borrowing by presenting drafts for acceptance and purchase as B/As by the Lender. Notwithstanding any other provision of this Agreement, to the extent the Lender is unable to accept drafts, the Lender may make an advance to the Borrower in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). ~~The principal~~ Interest shall accrue on any amount of owing pursuant to this Section 2.31(d) which is not paid when due (whether by scheduled maturity, mandatory prepayment, acceleration or otherwise) from the date such amount becomes due until paid in full at a ~~B/A Equivalent Loan shall be~~ fluctuating rate per annum equal to the ~~face amount of the applicable draft that~~ rate which would ~~otherwise~~ then be issued to the Lender in connection therewith, and the provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by the Lender. The Lender shall not be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears payable on any ~~B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid~~ overdue Local Rate Loans and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by such Local Borrowing Subsidiary upon demand by such Local Fronting Lender. (e) Each Tranche A Revolving Lender hereby unconditionally and irrevocably agrees to purchase undivided participating interests in the ~~Borrower~~ Acceptances created by each Local Fronting Lender in accordance with the provisions of Section 2.32. (f) Notwithstanding anything to the ~~Lender in respect of each B/A accepted~~ contrary contained herein, the indefeasible prepayment by the ~~Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid~~ relevant Local Borrowing Subsidiary to the relevant Local Fronting Lender ~~at the time~~ of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount all or ~~otherwise dispose~~ a portion of any or all B/As accepted and purchased by it. 2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such B/As on the last day of the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As outstanding Acceptance shall be deemed to ~~have been converted on~~ constitute a prepayment of such portion of such Acceptance for all purposes hereunder, regardless of whether the ~~last day~~ relevant Local Fronting Lender has distributed such amount to the holder of the Contract Period into a Canadian Prime Loan in an amount equal to the face amount of such B/As and the Borrower shall be deemed to have irrevocably requested such conversion without the execution of a Borrowing Requestunderlying Draft. 2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due to the Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, the Borrowers shall have no further liability in respect of such B/A and the Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waived.

Appears in 1 contract

Samples: Asset Based Revolving Credit Agreement (Revlon Inc /De/)

Bankers’ Acceptances. ~~2.5.1 Subject~~ (1) To facilitate the issuance of Bankers’ Acceptances pursuant to ~~the terms and conditions of~~ this Agreement, any Borrower may request a Borrowing by presenting drafts for acceptance and purchase as B/As by the Lender. Notwithstanding any other provision of this Agreement, to the extent the Lender is unable to accept drafts, the Lender may make an advance to the Borrower in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). The principal amount of a B/A Equivalent Loan shall be equal to the face amount of the applicable draft that would otherwise be issued to the Lender in connection therewith, and the provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby irrevocably appoints the Lender as ~~its attorney~~ the attorney-in-fact of the Borrower to ~~sign~~ execute, endorse and ~~endorse~~ deliver on ~~its~~ behalf (of the Borrower drafts in ~~accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary~~ the forms prescribed by the ~~Lender, blank forms of B/As~~ Lender for bankers’ acceptances denominated in ~~the form requested~~ Canadian Dollars (each such executed draft that has not yet been accepted by the ~~Lender. In this respect, it is the Borrowers’ responsibility~~ Lender being referred to ~~furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement~~as a “Draft”). Each ~~Borrower recognizes~~ Bankers’ Acceptance executed and ~~agrees that all B/As signed and/or endorsed~~ delivered by the Lender on behalf of ~~such Borrower shall bind such~~ the Borrower as ~~fully and effectually~~ provided for in this Section 5.01 will be as binding upon the Borrower as if ~~signed~~ it had been executed and delivered by a duly authorized officer of the Borrower. (2) Notwithstanding the provisions of Section 5.01(1), the Borrower will from time to time as required by the Lender provide to the Lender an appropriate number of Drafts drawn by the Borrower upon the Lender and payable to the clearing service designated by the Lender. The dates, maturity dates and face amounts of all Drafts delivered by the Borrower must be left blank, to be completed by the Lender as required by this Agreement. The Lender will exercise the same degree of care in the ~~handwriting~~ custody of ~~and duly issued~~ such Draft as the Lender would exercise with respect to its own property kept at the place at which the Drafts are ordinarily kept by the ~~proper signing officers~~ Lender. The Lender, upon the written request of the Borrower, will promptly advise the Borrower of the number and designation, if any, of the Drafts then held by it. The Lender will not be liable for its failure to accept a Draft as required by this Agreement if the cause of such ~~Borrower~~failure is, in whole or in part, due to the failure of the Borrower to provide on a timely basis appropriate Drafts as requested by the Lender. (3) The term of all Bankers’ Acceptances issued pursuant to any Drawdown Notice must be identical. Each Bankers’ Acceptance must be dated the Drawdown Date on which it is issued and will be for a term of one, two, three or six months, provided that in no event will the term of a Bankers’ Acceptance extend beyond the Final Maturity Date. (4) The Lender will complete and accept on the applicable Drawdown Date a Draft having a face amount (or Drafts having the aggregate face amount) and term specified in the Drawdown Notice. The Lender will purchase on the applicable Drawdown Date all Bankers’ Acceptances accepted by it, for an aggregate price equal to the BA Discount Proceeds of such Bankers’ Acceptances. The Lender is hereby authorized ~~(in accordance with a Borrowing Request relating~~ to ~~a B/A Borrowing)~~ release the Bankers’ Acceptance accepted by it to ~~issue~~ the applicable clearing service upon receipt of confirmation that such ~~B/As endorsed in blank in~~ clearing service holds such ~~face amounts as may be determined by~~ Bankers’ Acceptance for the account of such the Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by the Lender. The Lender shall not be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. ~~2.5.4 Drafts of a~~ (5) The Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall will pay ~~the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by the Borrower~~ to the Lender in respect of each ~~B/A~~ Draft tendered by the Borrower to and accepted by the Lender as a condition of such acceptance or purchase, the BA Stamping Fee. The Lender is entitled to deduct and retain for its own account the amount of such ~~Acceptance Fee shall either~~ fee from the amount to be ~~set off against the Discount Proceeds payable~~ deposited by the Lender ~~under~~ to the applicable Borrower’s Account pursuant to this ~~Section 2.5.6 or paid~~ Agreement in respect of the sale of the related Bankers’ Acceptance. (6) On the date of maturity of each Bankers’ Acceptance, the Borrower will pay to the Lender in Canadian Dollars an amount equal to the face amount of such Bankers’ Acceptance. The obligation of the Borrower to make such payment will not be prejudiced by the fact that the holder of such Bankers’ Acceptance is the Lender. No days of grace may be claimed by the Borrower for the payment at maturity of any Bankers’ Acceptance. If the Borrower does not make such payment from the proceeds of a Loan obtained under this Agreement or otherwise, the amount of such required payment will be deemed to be a Prime Rate Loan to the Borrower. (7) The signature of any duly authorized officer of the Borrower on a Draft may be mechanically reproduced in facsimile, and all Drafts bearing such facsimile signature will be as binding upon the Borrower as if they had been manually signed by such officer, notwithstanding that such Person whose manual or facsimile signature appears on such Draft may no longer hold office at the ~~time~~ date of such Draft or at the date of acceptance of such ~~B/A~~ Draft by the Lender ~~in the event that the Borrower does not request the Lender to purchase the accepted B/As~~or at any time thereafter. ~~2.5.7~~ (8) The Lender may at any time and from time to ~~time~~ time, hold, sell, rediscount or otherwise dispose of any or all ~~B/As~~ Bankers’ Acceptances accepted and purchased by it. 2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such B/As on the last day of the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As shall be deemed to have been converted on the last day of the Contract Period into a Canadian Prime Loan in an amount equal to the face amount of such B/As and the Borrower shall be deemed to have irrevocably requested such conversion without the execution of a Borrowing Request. 2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due to the Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, the Borrowers shall have no further liability in respect of such B/A and the Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waived.

Appears in 1 contract

Samples: Credit Agreement (Dirtt Environmental Solutions LTD)

Bankers’ Acceptances. ~~2.5.1 Subject to~~ (1) To facilitate the ~~terms and conditions of~~ procedures contemplated in this Agreement, ~~any~~ the Borrower ~~may request~~ irrevocably appoints each Lender from time to time as the attorney-in-fact of the Borrower to execute, endorse and deliver on behalf of the Borrower drafts (including book based forms and electronic paper) in the forms prescribed by such Lender (if such Lender is a ~~Borrowing by presenting drafts~~ BA Lender) for ~~acceptance and purchase as B/As~~ bankers’ acceptances denominated in Canadian Dollars that have been requested by the Borrower pursuant to a Drawdown Notice or Conversion Notice, as applicable (each such executed draft which has not yet been accepted by a Lender being referred to as a “Draft”) or non-interest-bearing promissory notes of the Borrower in favour of such Lender (if such Lender is a Non-BA Lender) (each such promissory note being referred to as a "BA Equivalent Note"). Each Bankers' Acceptance and BA Equivalent Note executed and delivered by a Lender on behalf of the Borrower as provided for in this Section shall be as binding upon the Borrower as if it had been executed and delivered by a duly authorized officer of the Borrower. (2) Notwithstanding ~~any other provision of this Agreement~~Section 6.01(1), the Borrower will from time to time as required by the applicable Lender provide to the ~~extent~~ Lenders an appropriate number of Drafts drawn by the Borrower upon each BA Lender and either payable to a clearing service (if such BA Lender is ~~unable to accept drafts, the Lender may make an advance~~ a member thereof) or payable to the Borrower and endorsed in ~~lieu~~ blank by the Borrower (if such BA Lender is not a member of ~~purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A~~ such clearing service) and an appropriate number of BA Equivalent ~~Loan”)~~Notes in favour of each Non-BA Lender. The dates, the maturity dates and the principal amounts of all Drafts and BA Equivalent Notes delivered by the Borrower shall be left blank, to be completed by the Lenders as required by this Agreement. All such Drafts or BA Equivalent Notes shall be held by each Lender subject to the same degree of care as if they were such Lender's own property kept at the place at which the Drafts or BA Equivalent Notes are ordinarily kept by such Lender. Each Lender, upon written request of the Borrower, will promptly advise the Borrower of the number and designation, if any, of the Drafts and BA Equivalent Notes then held by it. No Lender shall be liable for its failure to accept a Draft or purchase a BA Equivalent Note as required by this Agreement if the cause of such failure is, in whole or in part, due to the failure of the Borrower to provide on a timely basis appropriate Drafts or BA Equivalent Notes to the applicable Lender as may be requested by such Lender on a timely basis from time to time. (3) The Agent, promptly following receipt of a Drawdown Notice or Conversion Notice, as applicable, requesting Bankers' Acceptances, shall (i) advise each BA Lender of the face amount and the term of the Draft to be accepted by it and (ii) advise each applicable Non-BA Lender of the face amount and term of the BA Equivalent Note to be purchased by it. All Drafts to be accepted from time to time by each BA Lender that is a member of a clearing service shall be payable to such clearing service. The term of all Bankers' Acceptances and BA Equivalent Notes issued pursuant to any Drawdown Notice or Conversion Notice, as applicable, shall be identical. Each Bankers' Acceptance and BA Equivalent Note shall be dated the Drawdown Date or Conversion Date, as applicable, on which it is issued and shall be for a term of 1, 2 or 3 months or a longer term (subject to market availability), provided that in no event shall the term of a Bankers' Acceptance or a BA Equivalent Note extend beyond the Maturity Date. The face amount of the Draft (or the aggregate face amount of the Drafts) to be accepted at any time by each Lender which is a ~~B/A Equivalent Loan shall be equal to~~ BA Lender, and the face amount of the BA Equivalent Notes to be purchased at any time by each Lender which is a Non-BA Lender, shall be determined by the Agent based upon the amounts of their respective Commitments under the applicable ~~draft that would otherwise~~ Credit Facility. In determining a Lender's Proportionate Share of a request for a Bankers' Acceptance or BA Equivalent Note, as applicable, the Agent, in its sole discretion, shall be ~~issued~~ entitled to increase or decrease the face amount of any Draft, or BA Equivalent Note, as applicable, to the nearest $1,000. (4) Each BA Lender ~~in connection therewith~~shall complete and accept on the applicable Drawdown Date a Draft having a face amount (or Drafts having the face amounts) and term advised by the Agent pursuant to Section 6.01(3). Each applicable BA Lender shall purchase on the applicable Drawdown Date or Conversion Date, as applicable, the Bankers' Acceptance accepted by it, for an aggregate price equal to the BA Discount Proceeds of such Bankers' Acceptance. The Borrower shall ensure that there is delivered to each applicable BA Lender that is a member of a clearing service the completed Bankers' Acceptances, and ~~the provisions of this Agreement shall apply to~~ such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The BA Lender is hereby authorized to release the Bankers' Acceptance accepted by it to such clearing house upon receipt of confirmation that such clearing house holds such Bankers' Acceptance for the account of such BA Lender. (5) Each Non-BA Lender, in ~~accordance with~~ lieu of accepting Drafts or purchasing Bankers' Acceptances on any Drawdown Date, or Conversion Date, as applicable, will complete and purchase from the Borrower on such Drawdown Date or Conversion Date, as applicable, a ~~Borrowing Request relating~~ BA Equivalent Note in a face amount and for a term identical to the face amount and term of the Draft which such Non-BA Lender would have been required to accept on such Drawdown Date or Conversion Date, as applicable, if it were a ~~B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the~~ BA Lender~~; provided that the aggregate amount thereof is~~ , for a price equal to the ~~aggregate amount~~ BA Discount Proceeds of ~~B/As required to be accepted and purchased by the Lender~~such BA Equivalent Note. ~~The~~ Each Non-BA Lender shall ~~not~~ be ~~liable~~ entitled without charge to exchange any BA Equivalent Note held by it for ~~any damage~~two or more BA Equivalent Notes of identical date and aggregate face amount, ~~loss or other claim arising by reason of any loss or improper use of any~~ and the Borrower will execute and deliver to such ~~instrument except for the gross negligence or wilful misconduct of the~~ Non-BA Lender ~~or its officers, employees, agents or representatives. The~~ such replacement BA Equivalent Notes and such Non-BA Lender shall ~~maintain a record with respect~~ return the original BA Equivalent Note to ~~B/As~~ the Borrower for cancellation. (6) The Borrower shall pay the BA Stamping Fee to (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by the Borrower to the BA Lender in respect of each ~~B/A~~ Draft tendered by the Borrower to and accepted by ~~the Lender~~ such BA Lender, and ~~such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid to the Lender at the time of acceptance of such B/A by the~~ (b) each Non-BA Lender in ~~the event that the Borrower does not request the Lender~~ respect of each BA Equivalent Note tendered to ~~purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted~~ and purchased by itsuch Non-BA Lender, in each case, as a condition of such acceptance or purchase. ~~2.5.8 With respect to~~ (7) Upon acceptance of each ~~B/A Borrowing, at~~ Draft or ~~before 10:00 a.m. one Business Day before the last day~~ purchase of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Periodeach BA Equivalent Note, the Borrower shall ~~provide payment~~ pay to the applicable Lender ~~of an amount equal~~ the BA Stamping Fee, and to facilitate payment such Lender shall be entitled to deduct and retain for its own account the ~~aggregate face~~ amount of such ~~B/As on~~ fee from the ~~last day~~ amount to be transferred by such Lender to the Agent for the account of the ~~Contract Period~~ Borrower pursuant to this Agreement in respect of the sale of the related Bankers' Acceptance or of such ~~B/As. If~~ BA Equivalent Note. (8) On the date of maturity of each Bankers' Acceptance or BA Equivalent Note, as applicable, the Borrower ~~fails~~ shall pay to ~~make such payment~~the Agent, ~~such maturing B/As shall be deemed to have been converted on~~ for the ~~last day~~ account of the ~~Contract Period into a~~ holder of such Bankers' Acceptance or BA Equivalent Note, in Canadian ~~Prime Loan in~~ Dollars, an amount equal to the face amount of such ~~B/As~~ Bankers' Acceptance or BA Equivalent Note, as the case may be (subject to standard and customary mechanics in connection with Rollovers or Conversions pursuant to Section 2.06). The obligation of the Borrower to make such payment shall not be prejudiced by the fact that the holder of such Bankers' Acceptance is the Lender that accepted such Bankers' Acceptances. No days of grace shall be claimed by the Borrower for the payment at maturity of any Bankers' Acceptance or BA Equivalent Note. If the Borrower does not make such payment, from the proceeds of an Advance obtained under this Agreement or otherwise, the amount of such required payment shall be deemed to ~~have irrevocably requested such conversion without the execution of~~ be a ~~Borrowing Request. 2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due~~ Prime Rate Advance to the Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower ~~who requested such B/A shall pay~~ from the Lender that ~~has~~ accepted ~~and~~ such Bankers' Acceptance or purchased such ~~B/A~~ BA Equivalent Note. (9) The signature of any duly authorized officer of the ~~full face amount~~ Borrower on a Draft or a BA Equivalent Note may be mechanically reproduced in facsimile, and all Drafts and BA Equivalent Notes requested by the Borrower pursuant to a Drawdown Notice or Conversion Notice, as applicable, bearing such facsimile signature shall be as binding upon the Borrower as if they had been manually signed by such officer, notwithstanding that such Person whose manual or facsimile signature appears on such Draft or BA Equivalent Note may no longer hold office at the date of such ~~B/A and, after such payment,~~ Draft or BA Equivalent Note or at the ~~Borrowers shall have no further liability in respect~~ date of acceptance of such ~~B/A and the~~ Draft by a BA Lender ~~shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If~~ or at any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waivedtime thereafter.

Appears in 1 contract

Samples: Credit Agreement (Valens Company, Inc.)

Bankers’ Acceptances. ~~2.5.1 Subject~~ (a) Each acceptance and purchase of B/As of a single Contract Period pursuant to the terms hereof shall be made ratably by the Revolving Lenders in accordance with the amounts of their Revolving Commitments. The failure of any Revolving Lender to accept any B/A required to be accepted by it shall not relieve any other Revolving Lender of its obligations hereunder; provided that the Revolving Commitments are several and ~~conditions~~ no Revolving Lender shall be responsible for any other Revolving Lender’s failure to accept B/As as required. (b) The B/As of ~~this Agreement~~a single Contract Period accepted and purchased on any date shall be in an aggregate face amount that is at least equal to Cdn.$1,000,000 and is an integral multiple of Cdn.$500,000 and such face amount shall be in the Lenders’ pro rata portions; provided, that the Administrative Agent may in its sole discretion increase or reduce any ~~Borrower~~ Lender’s portion of such B/A to the nearest $500,000. B/As of more than one Contract Period, but not more than ten (10) Contract Periods, may be outstanding at the same time. (c) To request ~~a Borrowing by presenting drafts for~~ an acceptance and purchase as of B/As As, the Parent Borrower shall notify the Administrative Agent of such request in accordance with Section 2.08(d). Each such request shall be irrevocable and, if telephonic, shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written request in a form approved by the ~~Lender~~Administrative Agent and signed by the Parent Borrower. ~~Notwithstanding any other provision of this Agreement, to~~ Each such telephonic and written request shall specify the ~~extent~~ following information: (i) the Lender is unable to accept drafts, the Lender may make an advance to the Borrower in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). The principal amount of a B/A Equivalent Loan shall be equal to the aggregate face amount of the ~~applicable draft that would otherwise be issued to the Lender in connection therewith, and the provisions of this Agreement shall apply to such~~ B/~~A Equivalent Loan as if~~ As to be accepted and purchased; (ii) the date of such acceptance and purchase, which shall be a ~~draft had been issued~~ Business Day; (iii) the Contract Period to ~~such Lender (including the payment~~ be applicable thereto, which shall be a period contemplated by the ~~Lender~~ definition of the term “Contract Period” (and which shall in no event end after the Latest Maturity Date); and (iv) the location and number of the Parent Borrower’s account to which the applicable Discount Proceeds ~~as provided for in~~ (net of applicable acceptance fees) are to be disbursed, which shall comply with the requirements of Section ~~2.5.6 at the time the draft would have been issued to such Lender)~~2.08. ~~The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No~~ If no Contract Period is specified with respect to a any requested acceptance and purchase of B/A As, then the Parent Borrower shall be deemed to have selected a Contract Period of 30 days’ duration. Promptly following receipt of a request in accordance with this paragraph, the Administrative Agent shall so advise each Revolving Lender and shall advise each Lender of the aggregate face amount of B/As to be accepted and purchased ~~under~~ by such Lender and the ~~Credit Facility~~ applicable Contract Period (which shall ~~extend beyond the Maturity Date~~be identical for all Lenders). ~~2.5.3 To facilitate availment of B/A Borrowings~~ (~~other than B/A Equivalent Loans), each~~ d) Parent Borrower hereby appoints ~~the~~ each Revolving Lender as its attorney to sign and endorse on its ~~behalf (in accordance with a Borrowing Request relating to a B/A Borrowing)~~behalf, ~~in handwriting~~ manually or by facsimile or mechanical ~~signature~~ signature, as and when deemed necessary by ~~the~~ such Lender, blank forms of B/As As, in the form requested by ~~the Lender. In this respect~~such Lenders, each Revolving Lender hereby agreeing that it ~~is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of~~ will not sign or endorse B/As ~~for acceptance under this Agreement~~in excess of those required in connection with B/A Drawings that have been requested by the Parent Borrower hereunder. ~~Each~~ The Parent Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by ~~the~~ any Revolving Lender ~~on behalf of such Borrower~~ shall bind ~~such~~ the Parent Borrower as fully and effectually as if manually signed ~~in the handwriting of~~ and duly issued by ~~the proper signing~~ authorized officers of ~~such~~ the Parent Borrower. ~~The~~ Each Revolving Lender is hereby authorized ~~(in accordance with a Borrowing Request relating to a B/A Borrowing)~~ to issue such B/As endorsed in blank in such face amounts as may be determined by ~~the~~ such Revolving Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted ~~and purchased~~ by ~~the~~ such Revolving Lender. ~~The~~ No Revolving Lender shall ~~not~~ be liable for any damage, loss or ~~other~~ claim arising by reason of any loss or improper use of any such instrument ~~except for~~ unless such loss or improper use results from the bad faith, gross negligence or ~~wilful~~ willful misconduct as determined by a final, non-appealable judgment of ~~the Lender or its officers, employees, agents or representatives~~a court of competent jurisdiction of such Revolving Lender. ~~The~~ Each Revolving Lender shall maintain a record with respect to B/As (ai) received by it in blank hereunder, (bii) voided by it for any reason, (ciii) ~~accepted or~~ accepted and purchased by it ~~hereunder,~~ hereunder and (div) cancelled at their respective maturities. On Each Revolving Lender further agrees to retain such records in the manner and for the periods provided in applicable provincial or federal statutes and regulations of Canada and to provide such records to the Parent Borrower upon its request and at its expense. Upon request by ~~or on behalf of any~~ the Parent Borrower, ~~the~~ a Revolving Lender shall cancel all forms of B/A ~~which~~ that have been pre-signed or pre-endorsed on behalf of ~~such~~ the Parent Borrower and ~~which~~ that are held by ~~the~~ such Lender and are not required to be issued ~~in accordance with such Borrower’s irrevocable notice~~pursuant to this Agreement. ~~2.5.4~~ (e) Drafts of a the Parent Borrower to be accepted as B/As hereunder shall be signed as set forth in ~~this Section 2.5~~paragraph (d) above. Notwithstanding that any ~~person~~ Person whose signature appears on any B/A may no longer be an authorized signatory for any of the ~~Lender~~ Revolving Lenders or a Parent Borrower at the date of issuance of a such B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed and properly completed shall be binding on ~~a Borrower who requested such B/A. 2.5.5 In~~ the ~~case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000~~Parent Borrower. ~~2.5.6~~ (f) Upon acceptance of a B/A by a Revolving Lender pursuant to the ~~Lender~~terms hereof, ~~the~~ such Lender ~~unless otherwise requested by a Borrower,~~ shall ~~purchase, or arrange for the~~ purchase ~~of, each~~ such B/A from the Parent Borrower at the Discount Rate for such Lender applicable to such B/A accepted by it and ~~shall pay~~ provide to the Administrative Agent the Discount Proceeds to for the ~~Borrower in respect thereof~~account of the Parent Borrower. An The Acceptance Fee ~~shall be~~ payable by the Parent Borrower to ~~the~~ a Revolving Lender under Section 2.13(g) in respect of each B/A accepted by ~~the~~ such Revolving Lender ~~and such Acceptance Fee~~ shall ~~either~~ be set off against the Discount Proceeds payable by ~~the~~ such Revolving Lender under this ~~Section 2.5.6 or paid to the Lender at the time of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As~~paragraph. ~~2.5.7 The~~ (g) Each Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As A’s accepted and purchased by it. ~~2.5.8 With respect to each~~ (h) Each B/A ~~Borrowing,~~ accepted and purchased hereunder shall mature at ~~or before 10:00 a.m. one Business Day before~~ the ~~last day~~ end of the Contract Period ~~of such B/As~~applicable thereto and except as provided in Sections 2.07, ~~the Borrower that requested the~~ 2.14 and 2.15 and as required under Article VIII, no B/A ~~shall notify~~ may be repaid by the ~~Lender by irrevocable written notice, followed by a notice of rollover on~~ Parent Borrower prior to the ~~same day, if the Borrower intends to issue B/As on such last day~~ expiry date of the Contract Period applicable to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such B/~~As on the last day of the Contract Period of such B/As. If the~~ A. (i) The Parent Borrower fails to make such payment, such maturing B/As shall be deemed to have been converted on the last day of the Contract Period into a Canadian Prime Loan in an amount equal to the face amount of such B/As and the Borrower shall be deemed to have irrevocably requested such conversion without the execution of a Borrowing Request. 2.5.9 The Borrowers waive waives presentment for payment and any other ~~defence~~ defense to payment of any amounts due to ~~the~~ a Revolving Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by ~~the~~ such Lender in its own ~~right,~~ right and the ~~Borrowers agree~~ Parent Borrower agrees not to claim any days of grace if ~~the Lender,~~ such Lender as ~~holder,~~ holder claims payment from or sues the ~~Borrowers~~ Parent Borrower on the B/A for payment of the ~~amount~~ amounts payable by the ~~Borrowers~~ Parent Borrower thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required ~~or permitted~~ pursuant to the provisions of this Agreement, the Parent Borrower ~~who requested such B/A~~ shall pay to the Administrative Agent, for the account of the Revolving Lender that has accepted and purchased such B/A or relevant B/A Equivalent Loan (irrespective of whether such Lender then holds such BA), the full face amount of such B/A ~~and~~or B/A Equivalent Loan, as the case may be, and after such ~~payment,~~ payment the ~~Borrowers~~ Parent Borrower shall have no further liability in respect of such B/A and ~~the~~ such Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. ~~2.5.10 If any Event of Default shall occur and be continuing~~(j) Alternatively, the ~~Borrowers~~ Parent Borrower agrees that, at the request of the Administrative Agent, the Parent Borrower shall ~~deposit in an interest bearing account~~ deliver to the Administrative Agent a “depository note” which complies with the ~~Lender~~requirements of the Depository Bills and Notes Act (Canada), and consents to the deposit of any such depository note in the ~~name~~ book-based debt clearance system maintained by the Canadian Depository for Securities. (k) If a Revolving Lender is not a charter bank named in Schedule 1 to the Bank Act (Canada) or if a Revolving Lender notifies the Administrative Agent in writing that it is otherwise unable or unwilling to accept B/As, such Lender will, instead of accepting and purchasing B/As, make a Loan (a “B/A Equivalent Loan”) to the Parent Borrower in the amount and for the same term as each draft which such Lender would otherwise have been required to accept and purchase hereunder (it being the intention of the ~~Lender~~parties that each B/A Equivalent Loan shall have the same economic consequences for each Lender making such B/A Equivalent Loan and the Parent Borrower as the B/A that such B/A Equivalent Loan replaces, ~~an amount in cash equal~~ including payment by the Parent Borrower to each such Lender making such B/A Equivalent Loan of the Acceptance Fee). Each such Lender will provide to the ~~face amount~~ Administrative Agent the Discount Proceeds of ~~all~~ such B/A Equivalent Loan for the account of the Parent Borrower in the same manner as such Lender would have provided the Discount Proceeds in respect of the draft which such Lender would otherwise have been required to accept and purchase hereunder. (l) Amounts to be applied pursuant to 2.14 and 2.15 and as required under Article VIII to prepay or repay amounts to become due with respect to then outstanding B/As ~~then outstanding. Such deposit~~ shall be ~~held~~ deposited in a Prepayment Account (as defined below). The Administrative Agent shall apply any cash deposited in the Prepayment Account allocable to amounts to become due in respect of B/As on the last day of their respective Contract Periods until all amounts due in respect of such outstanding B/As have been repaid or until all such cash has been exhausted (and any amount remaining in the Prepayment Account after all of the respective B/As for which the applicable deposit was made have matured and been paid will be released to the Parent Borrower). For purposes of this Agreement, the term “Prepayment Account” shall mean an account established by the ~~Lender as collateral for~~ Parent Borrower with the ~~payment~~ Administrative Agent and ~~performance of~~ over which the ~~obligations of the Borrowers under this Agreement. The Lender~~ Administrative Agent shall have exclusive ~~dominion and~~ control, including the exclusive right of ~~withdrawal, over such account~~withdrawal for application in accordance with this paragraph (l). The ~~deposit shall bear interest~~ Administrative Agent will, at the ~~rate customarily offered~~ request of the Parent Borrower, invest amounts on deposit in the Prepayment Account in short-term, cash equivalent investments selected by the ~~Lender~~ Administrative Agent with the consent of the Parent Borrower that mature prior to the last day of the applicable Contract Periods of the B/As to be prepaid; provided, however, that the Administrative Agent shall have no obligation to invest amounts on deposit in the Prepayment Account if an Event of Default shall have occurred and be continuing. The Parent Borrower shall indemnify the Administrative Agent for ~~deposits~~ any losses relating to the investments so that the amount available to prepay amounts due in ~~similar circumstances and~~ respect of B/As on the last day of the applicable Contract Period is not less than the amount that would have been available had no investments been made pursuant thereto. Other than any interest earned on ~~the deposit or on the investment of~~ such ~~deposit, if mutually agreed,~~ investments (which ~~investments~~ shall be ~~made at~~ for the ~~Borrowers’ risk and expense shall accumulate in such account. Moneys in such~~ account ~~shall be applied by~~ of the ~~Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and~~Parent Borrower, to the extent not ~~so applied~~necessary for the prepayment of B/As in accordance with this Section), the Prepayment Account shall not bear interest. Interest or profits, if any, on such investments shall be deposited in the Prepayment Account and reinvested and disbursed as specified above. If the maturity of the Loans ~~has~~ and all amounts due hereunder have been ~~accelerated~~accelerated pursuant to Article VIII, ~~be applied~~ the Administrative Agent may, in its sole discretion, apply all amounts on deposit in the Prepayment Account of the Parent Borrower to satisfy ~~other obligations~~ any of the ~~Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result~~ Obligations of the ~~occurrence~~ Parent Borrower in respect of ~~an Event of Default, such amount~~ Loans and B/As (and the Parent Borrower hereby grants to the ~~extent not applied as aforesaid) shall be returned~~ Administrative Agent a security interest in its Prepayment Account to ~~the Borrowers within three Business Days after all Events of Default have been cured or waived~~secure such Obligations).

Appears in 1 contract

Samples: Credit Agreement (Patheon Inc)

Bankers’ Acceptances. ~~2.5.1 Subject to~~ If: (i) the ~~terms~~ Agent, acting reasonably, makes a determination, which determination shall be conclusive and ~~conditions of this Agreement~~binding upon the Borrower, ~~any Borrower may request a Borrowing by presenting drafts~~ and notifies the Borrower, that there no longer exists an active market for ~~acceptance and purchase as B/As~~ bankers' acceptances accepted by the ~~Lender. Notwithstanding any other provision~~ Lenders; or (ii) the Agent is advised by Lenders holding at least 35% of ~~this Agreement~~the Total Commitment and being not less than 35% in number of Lenders by written notice (each, a "Lender BA Suspension Notice") that such Lenders have determined, acting reasonably, that the Discount Rate will not or does not accurately reflect the cost of funds of such Lenders or the discount rate which would be applicable to a sale of Bankers' Acceptances accepted by such Lenders in the ~~extent~~ market; then: (iii) the ~~Lender is unable to accept drafts, the Lender may make an advance to~~ right of the Borrower ~~in lieu of purchasing a draft that it would otherwise be required~~ to ~~purchase hereunder (a “B/A~~ request Bankers' Acceptances or BA Equivalent ~~Loan”). The principal amount of a B/A Equivalent Loan~~ Advances from any Lender shall be ~~equal to~~ suspended until the ~~face amount of~~ Agent determines, acting reasonably, that the ~~applicable draft that would otherwise be issued to the Lender in connection therewith~~circumstances causing such suspension no longer exist, and the ~~provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including~~ Agent so notifies the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by the Lender. The Lender shall not be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and ~~which are held~~ the Lenders; (iv) any outstanding Borrowing Notice requesting an Accommodation by ~~the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts~~ way of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by the Borrower to the Lender in respect of each B/A accepted by the Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid to the Lender at the time of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it. 2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such B/As on the last day of the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As Bankers' Acceptances shall be deemed to ~~have been converted on the last day of the Contract Period into~~ be a ~~Canadian~~ Borrowing Notice requesting a Prime Loan in an the amount ~~equal to~~ specified in the ~~face amount~~ original Borrowing Notice; (v) any outstanding Conversion Notice requesting a Conversion of ~~such B/As and the Borrower~~ a U.S. Base Rate Loan or Libor Loan into a Bankers' Acceptance shall be deemed to ~~have irrevocably requested~~ be a Conversion Notice requesting a Conversion of such ~~conversion without the execution~~ Loan into a Prime Loan; and (vi) any outstanding Rollover Notice requesting a Rollover of a ~~Borrowing Request. 2.5.9~~ Bankers' Acceptance shall be deemed to be a Conversion Notice requesting a Conversion of such Bankers' Acceptances into a Prime Loan. The ~~Borrowers waive presentment for payment~~ Agent shall promptly notify the Borrower and ~~any other defence to payment~~ the Lenders of any ~~amounts due~~ suspension of the Borrower's right to request Bankers' Acceptances and of any termination of any such suspension. A Lender BA Suspension Notice shall be effective upon receipt of the same by the Agent if received prior to 2 p.m. (Toronto time) on a Business Day and if not, then on the next following Business Day, except in connection with a Borrowing Notice, Conversion Notice or Rollover Notice previously received by the Agent, in which case the applicable Lender BA Suspension Notice shall only be effective with respect to such previously received Borrowing Notice, Conversion Notice or Rollover Notice if received by the Agent prior to 2 p.m. (Toronto time) two (2) Business Days prior to the ~~Lender in respect of a B/A accepted and purchased by it pursuant~~ proposed Drawdown Date, Conversion Date or Rollover Date (as applicable) applicable to ~~this Agreement which might exist solely by reason of~~ such ~~B/A being held~~previously received Borrowing Notice, ~~at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender~~Conversion Notice or Rollover Notice, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, the Borrowers shall have no further liability in respect of such B/A and the Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waivedapplicable.

Appears in 1 contract

Samples: Credit Agreement (PRECISION DRILLING Corp)

Bankers’ Acceptances. ~~2.5.1~~ Subject to the terms and conditions of this Agreement, ~~any Borrower~~ the Commitments may be utilized, upon the request ~~a Borrowing~~ of the Company, in addition to the Loans provided for by ~~presenting drafts~~ Section 2.01(a) hereof and the issuance of Letters of Credit provided for by Section 2.03 hereof, for the acceptance ~~and purchase as B/As~~ by the ~~Lender. Notwithstanding any other provision~~ Lenders of ~~this Agreement~~bankers' acceptances (collectively, to the extent the Lender is unable to accept drafts, the Lender may make an advance to the Borrower in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). The principal amount of a B/A Equivalent Loan shall be equal to the face amount of the applicable draft that would otherwise be issued to the Lender in connection therewith, and the provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly "BANKERS' ACCEPTANCES") issued by the ~~proper signing officers of such Borrower. The Lender is hereby authorized~~ Company, PROVIDED that in no event shall (~~in accordance with a Borrowing Request relating to a B/A Borrowing~~i) ~~to issue such B/As endorsed in blank in such face amounts as may be determined by the Lender; provided that the aggregate amount thereof is equal to~~ the aggregate amount of all Bankers' Acceptance Liabilities, together with the aggregate Principal Amount of the Loans (including all Swingline Loans) and the aggregate amount of all Letter of Credit Liabilities (with amounts of any Loans or Letter of Credit Liabilities outstanding in U.S. Dollars expressed as an Equivalent Amount in Canadian Dollars) exceed the lesser of (A) the aggregate of the Commitments and (B~~/As required~~ ) the most recently determined Borrowing Base and (ii) any Bankers' Acceptances have maturities of less than 30 days or more than 180 days from the Acceptance Date (and shall in no event mature on a date after the Commitment Termination Date). The following additional provisions shall apply to Bankers' Acceptances: (a) The Company shall deliver to each Lender bills of exchange, executed in blank by its authorized signatory substantially in the form in Exhibit D in sufficient quantity and thereafter shall, from time to time upon request from the Administrative Agent, deliver to each Lender further quantities of such bills of exchange, so executed, and each Lender shall hold the bills of exchange in safekeeping. (b) When the Company wishes to make a borrowing by way of Bankers' Acceptances, the Company shall give the Administrative Agent prior written notice with respect to the issuance of the Bankers' Acceptances (such written notice a "BANKERS' ACCEPTANCE REQUEST") by not later than 1:00 p.m. Toronto time, two Business Days' prior to the Acceptance Date. Each Bankers' Acceptance Request shall be irrevocable and binding on the Company. The Company shall indemnify the Lender against any loss or expense incurred by the Lender as a result of any failure by the Company to fulfill or honor before the date specified as the Acceptance Date, the applicable conditions set forth in Section 6, if, as a result of such failure the requested Bankers' Acceptance is not made on such date. Unless otherwise agreed among the Administrative Agent and the Lenders, the aggregate amount of all Bankers' Acceptances issued on any Acceptance Date hereunder shall be accepted pro rata by all Lenders relative to their respective Commitment Percentage, rounded, upwards or downwards, as the case may be, to the nearest C$100,000. Upon receipt of a Bankers' Acceptance Request, the Administrative Agent shall advise each Lender of the contents thereof. (c) Unless the Company has notified the Administrative Agent in the Bankers' Acceptance Request that the Company intends to arrange the sale of the Bankers' Acceptances which are the subject of such Bankers' Acceptance Request (a "COMPANY ARRANGEMENT"), on the Acceptance Date (i) at 10:30 a.m. Toronto time, the Administrative Agent shall determine the Bankers' Acceptance Rate based upon the average of the bankers' acceptance rates of each of the Accepting Lenders. That Bankers' Acceptance Rate will be the discount rate used by each of the Lenders that is able to extend credit by way of Bankers' Acceptances on such date (the "ACCEPTING LENDER") and (ii) not later than 2:00 p.m. Toronto time, each such Accepting Lender shall accept and purchase its share of the Bankers' Acceptances that are issued and shall make available to the Administrative Agent, in accordance with Section 2.02 hereof, the Net Proceeds of the purchase of Bankers' Acceptances on such day by such Lender calculated in accordance with Exhibit F. The Administrative Agent shall transfer to the Company those Net Proceeds of the Bankers' Acceptances ("AVAILABLE PROCEEDS") and shall notify the Company and each such Lender by telex, facsimile or telephone (if by telephone, to be confirmed subsequently in writing) of the details of the issue, substantially in the form set out in Exhibit G. On the Acceptance Date the Company shall pay each Accepting Lender and each Lender providing a BA Loan a stamping fee (the "STAMPING FEE") with respect to each Bankers' Acceptance and each BA Loan. For each Bankers' Acceptance or BA Loan, the Stamping Fee payable by the Company shall be the product obtained by multiplying: (i) the applicable BA Fee Rate specified in the definition of Applicable Margin in effect from time to time; by (ii) the Principal Amount of that Bankers' Acceptance or BA Loan; and pro rating that product for the number of days in the term from and including the Acceptance Date to but not including the Maturity Date of that Bankers' Acceptance or the Interest Period for the BA Loan, as the case may be, on the basis of a year of 365 days. (d) Before giving value to the Administrative Agent for the account of the Company (or in the case of a Company Arrangement, before delivering the Bankers' Acceptance to or at the direction of the Company), on the Acceptance Date each Accepting Lender shall, and is hereby authorized by the Company to, accept the Bankers' Acceptances by inserting the appropriate face amount, Acceptance Date and Maturity Date in accordance with the Bankers' Acceptance Request relating thereto and affixing its acceptance thereto and shall purchase the same or make them available for sale in accordance with the Company Arrangement. Each such Lender shall promptly send after the Maturity Date thereof, to the Company, each original canceled Bankers' Acceptance it has accepted and purchased ~~by the Lender~~as provided above. The Lender shall not be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by the Borrower to the Lender in respect of each B/A accepted by the Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid to the Lender at the time of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As. 2.5.7 The Each Accepting Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all ~~B/As~~ Bankers' Acceptances accepted and purchased by it. ~~2.5.8 With respect to~~ (e) On each ~~B/A Borrowing, at or before 10:00 a.m. one Business Day before~~ day during the ~~last day~~ period commencing with the issuance by a Lender of any Bankers' Acceptance and until such Bankers' Acceptance Liability shall have been paid by the ~~Contract Period of such B/As~~Company, the ~~Borrower~~ Commitment of each Accepting Lender that ~~requested the B/A~~ is able to extend credit by way of Bankers' Acceptances shall ~~notify the Lender by irrevocable written notice, followed by a notice~~ be deemed to be utilized for all purposes of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of this Agreement in an amount equal to the ~~aggregate face~~ Principal Amount of such Bankers' Acceptance. The Commitment of any Lender providing a BA Loan rather than Bankers' Acceptances shall be deemed utilized during this period in an amount equal to its Commitment Percentage of the total amount of ~~such B/As~~ Bankers' Acceptances in each Bankers' Acceptance Request. (f) The Company shall pay on the ~~last day~~ Maturity Date for each Bankers' Acceptance, to the Administrative Agent for account of each Accepting Lender an amount equal to the ~~Contract Period~~ Bankers' Acceptance Liability for such Bankers' Acceptance. The Company hereby waives presentment for payment of Bankers' Acceptances by the Accepting Lenders and any defense to payment of amounts due to an Accepting Lender in respect of a Bankers' Acceptance which might exist by reason of such ~~B/As. If~~ Bankers' Acceptance being held at maturity by the ~~Borrower~~ Accepting Lender which accepted it and agrees not to claim from such Lenders any days of grace for the payment at maturity of Bankers' Acceptances. (g) In the event the Company fails to notify the Administrative Agent in writing not later than 1:00 p.m. Toronto time on the Business Day prior to any Maturity Date, that the Company intends to pay with its own funds the Bankers' Acceptance Liabilities due on such Maturity Date or fails to make such payment, ~~such maturing B/As~~ the Company shall be ~~deemed~~ deemed, for all purposes to have ~~been converted on~~ given the ~~last day~~ Administrative Agent notice of ~~the Contract Period into~~ a borrowing of a Canadian Prime Loan in pursuant to Section 4.06 for an amount equal to the ~~face~~ Principal Amount of such Bankers' Acceptance; PROVIDED that: (i) the Maturity Date for such Bankers' Acceptances shall be considered to be the date of such borrowing; (ii) the proceeds of such Canadian Prime Loan shall be used to pay the amount of the Bankers' Acceptance Liability due on such Maturity Date; (iii) on such Maturity Date, the amount of such ~~B/As~~ Canadian Prime Loan shall first be directly applied to the Principal Amount of the Bankers' Acceptance due on such date; (iv) if after giving effect to such Canadian Prime Loan, a Borrowing Base Deficiency would exist, the Administrative Agent shall so advise the Company and the ~~Borrower~~ Company shall advise the Administrative Agent on the Maturity Date of the manner in which it intends to comply with the provisions of Section 2.11(a); (v) each Lender which has made a maturing BA Loan (in accordance with Section 2.04(h) hereof) shall continue to extend credit to the Company by way of a Canadian Prime Loan (without further advance of funds to the Company) in the principal amount equal to its Commitment Percentage of the total amount of credit requested to be extended by Bankers' Acceptances when the BA Loan was made; and (vi) the Administrative Agent shall promptly and in any event within 3 Business Days following the Maturity Date of such Bankers' Acceptances, notify the Company in writing of the making of such Canadian Prime Loan pursuant to this Section 2.04(g). (h) If, in the sole judgment of a Lender, such Lender is unable, as a result of applicable law or customary market practice, to extend credit by way of Bankers' Acceptance in accordance with this Agreement, such Lender shall give notice to such effect to the Administrative Agent and the Company prior to 1:00 p.m. (Toronto time) on the date of the requested credit extension (which notice may, if so stated therein, remain in effect with respect to subsequent requests for extension of credit by way of Bankers' Acceptance until revoked by notice to the Administrative Agent and the Company) and shall make available to the Administrative Agent, in accordance with Section 2.02 hereof prior to 2:00 p.m. (Toronto time) on the date of such requested credit extension a Canadian Dollar loan (a "BA LOAN") in the Principal Amount equal to such Lender's Commitment Percentage of the total amount of credit requested to be extended by way of Bankers' Acceptances. The Stamping Fee for that BA Loan shall be ~~deemed~~ calculated on that Principal Amount. Such BA Loan shall have the same term as the Bankers' Acceptances for which it is a substitute and shall bear interest throughout the Interest Period applicable to ~~have irrevocably requested such conversion without the execution of~~ that BA Loan at a ~~Borrowing Request. 2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due~~ rate per annum equal to the Bankers' Acceptance Rate for such Bankers' Acceptances. The amount of the proceeds of that BA Loan to be disbursed to the Company on the Acceptance Date shall be the same amount as if that Lender had accepted and purchased its Lender's Commitment Percentage of the requested Bankers' Acceptances at a discount from the Principal Amount of that Bankers' Acceptance calculated at a discount rate per annum equal to the Bankers' Acceptance Rate for the term of such Bankers' Acceptances in the same manner that Net Proceeds are calculated but excluding the BA Fee Rate component of that calculation. For greater certainty, the amount to be made available by each such Lender on any date in respect of a ~~B/A~~ BA Loan made by it on such date and, notwithstanding the Principal Amount of that BA Loan, the amount of that BA Loan that interest will be calculated on, shall be the same as the amount that such Lender would have been required to make available to the Company as its Commitment Percentage of the total amount of credit requested to be extended pursuant to the related Bankers' Acceptance Request before deducting the Stamping Fee had such Lender been able to extend credit by way of Bankers' Acceptance on such date. Such Lender shall deduct the Stamping Fee from that amount. (i) The Company may, if it so notifies the Administrative Agent in the applicable Bankers' Acceptance Request, arrange the sale of any particular issuance of Bankers' Acceptances to be accepted by the Lenders hereunder. To that end, on the Acceptance Date: (i) the Company shall obtain quotations from prospective purchasers regarding the sale of the Bankers' Acceptances to be accepted by the Lenders, and shall, on or before 11:00 a.m. (Toronto time) on such date, provide each Lender (through the Administrative Agent) with all necessary information required by such Lender to enable such Lender to determine the Bankers' Acceptance discount rate applicable to such issue, together with the identity of and the face amount of Bankers' Acceptances to be purchased by ~~it pursuant~~ each of the purchaser(s) of the Bankers' Acceptances accepted by such Lender. In obtaining such quotes, the Company shall offer each Lender the right to ~~this Agreement which might exist solely~~ bid on the Bankers' Acceptances accepted by ~~reason of such B/A being held, at~~ it. The Lenders and the ~~maturity thereof,~~ Administrative Agent shall not be responsible for any losses occasioned by the failure of the Company to comply with its obligations under this paragraph and shall not be required to purchase any Bankers' Acceptances on such Acceptance Date if the Company has requested a Company Arrangement; and (ii) on receipt from the Company of the information referred to in paragraph (i), the Administrative Agent shall promptly notify each Lender of: (A) the Bankers' Acceptance discount rate to be applicable to such issue; (B) the minimum proceeds to be received by such Lender on the sale of the Bankers' Acceptances accepted by such Lender, based upon such Bankers' Acceptance discount rate obtained by the Company for each such Lender; and (C) the Stamping Fee payable to such Lender in connection with such issue. (j) The issuance by an Accepting Lender of each Bankers' Acceptance shall, in addition to the conditions precedent set forth in Section 6 hereof, be subject to the conditions precedent that the Company shall have executed and delivered all Bankers' Acceptance Documents as the Accepting Lender shall have reasonably requested consistent with its ~~own right,~~ then current practices and ~~the Borrowers agree not~~ procedures with respect to ~~claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment~~ bankers' acceptances of the ~~amount payable by~~ same type, PROVIDED that in the ~~Borrowers thereunder. On the last day~~ event of ~~the Contract Period of a B/A, or~~ any conflict between any such ~~earlier date as may be required or permitted pursuant to~~ Bankers' Acceptance Documents and the provisions of this ~~Agreement~~Agreement or any Security Document, the ~~Borrower who requested such B/A~~ provisions of this Agreement and the Security Documents shall ~~pay~~ control. (k) If a Lender determines in good faith, which determination shall be final, conclusive and binding upon the ~~Lender that has accepted~~ Company, and notifies the Company that, by reason of circumstances affecting the money market: (i) there is no market for Bankers' Acceptances; or (ii) the demand for Bankers' Acceptances is insufficient to allow the sale or trading of the Bankers' Acceptances created and purchased hereunder; then: (iii) the right of the Company to request Bankers' Acceptances or a BA Loan from the Lenders shall be suspended until that Lender determines that the circumstances causing such ~~B/A~~ suspension no longer exist and that Lender so notifies the ~~full face amount of such B/A~~ Company; and~~, after such payment, the Borrowers~~ (iv) any Bankers' Acceptance Request which is outstanding shall ~~have no further liability in respect of such B/A~~ be cancelled and the ~~Lender~~ Bankers' Acceptances or BA Loan requested therein shall not be ~~entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default~~ made. The Administrative Agent shall ~~occur and be continuing,~~ promptly notify the ~~Borrowers shall deposit in an interest bearing account with the Lender, in the name~~ Company of the ~~Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance~~ suspension of the ~~obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive~~ Company's right ~~of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit~~ to request Bankers' Acceptances or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder a BA Loan as a result of the ~~occurrence~~ foregoing and of ~~an Event~~ the termination of ~~Default,~~ any such ~~amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waived~~suspension.

Appears in 1 contract

Samples: Credit Agreement (Canadian Forest Oil LTD)

Bankers’ Acceptances. ~~2.5.1 Subject~~ (a) Banks agree to extend credit on a revolving basis to Borrower through the Termination Date by accepting and discounting such Bankers' Acceptances as Borrower may request by a Request for Bankers' Acceptance during such period; provided, however, that after accepting and discounting any such Bankers' Acceptance the sum of (a) the Aggregate Outstanding Loans, (b) the Acceptance Liability and (c) the Letter of Credit Liability shall not exceed the Total Commitment. Unless Agent otherwise consents in writing, the tenor of any Bankers' Acceptance shall be not less than thirty (30) days or greater than one hundred eighty (180) days. No Bankers' Acceptance shall have a maturity date after the Termination Date. Each draft of Borrower shall comply with the Acceptance Documents and shall be executed by the Borrower and presented to Agent pursuant to such procedures as are provided for in the Acceptance Documents. The face amount of any Bankers' Acceptance shall not be less than two hundred fifty thousand dollars ($250,000). The creation date and maturity date of each Bankers' Acceptance shall be a Business Day. In addition, no Bankers' Acceptance will be created, accepted or discounted if it is not to be used to finance the importation or exportation of goods or the domestic shipment of goods. (b) Borrower agrees to notify Agent, by telephone (confirmed by a telecopy on the same Business Day of a Request for Bankers' Acceptance) no later than 11:00 a.m. (Fort Worth time) at least one Business Day prior to the date (an "Acceptance Date") upon which Borrower desires issuance or acceptance of a Bankers' Acceptance. Each Request for Bankers' Acceptance shall state in detail the amount and maturity of the requested Bankers' Acceptance, shall describe the transaction to be financed by the creation of such Banker's Acceptance, shall contain a description of the commodity being purchased or shipped with the funds provided by such Bankers' Acceptance, shall generally identify place of shipment from and the destination of the commodity being purchased or shipped with such funds, and shall provide instructions to the Agent for wiring the proceeds of such Bankers' Acceptance. On the Acceptance Date, Agent shall quote to Borrower a rate for discounting the Bankers' Acceptance which shall be equal to the sum of (1) the banker's acceptance rate of Agent at such time as determined by Agent and (2) the Applicable Fee (the Quoted Rate"). Upon receipt of the Quoted Rate, the Borrower shall telecopy to Agent the applicable Request for Bankers' Acceptance. Agent shall immediately provide the Borrower with a telecopy confirmation of its Quoted Rate and the other terms of the requested Bankers' Acceptance. Upon such confirmation, Agent shall proceed to create, accept and discount such Banker's Acceptance on the Acceptance Date in accordance with the terms hereof. (c) Upon the acceptance by Agent of a Bankers' Acceptance, Agent shall discount such Bankers' Acceptance by deducting from the face amount thereof a discount determined by the per annum Quoted Rate, with such per annum rate applied against the face amount of the Bankers' Acceptance for the tenor thereof, and shall make such discounted amount available in immediately available funds to the Borrower pursuant to instructions in the applicable Request for Bankers' Acceptance. Agent may retain or rediscount, at its election, any Bankers' Acceptance and the amount received by Agent upon payment thereof at maturity or upon rediscounting shall be solely for the account of Banks. (d) If Borrower receives notice from Agent that a Bankers' Acceptance shall have matured and Borrower does not promptly pay to Agent the face amount of such Bankers' Acceptance, Agent shall pay the face amount of such Bankers' Acceptance and such payment by Agent shall be treated as a Floating Base Advance and thus a Revolving Credit Loan under the Notes and Borrower shall be deemed to have given to the Agent, in accordance with the terms and conditions of ~~this Agreement~~Section 2.02, a Request for Borrowing with respect thereto. (e) If any Bankers' Acceptance is determined, subsequent to its creation or discount, not to be "eligible" pursuant to paragraph 7 of Section 13 of the Federal Reserve Act (12 U.S.C. Sec. 372), as amended from time to time, as of the date of its creation, acceptance or discount, then Borrower shall pay to Agent, within two (2) days after demand, an amount equal to all costs, losses, and expenses, including, without limitation, any ~~Borrower may request a Borrowing by presenting drafts for acceptance and purchase as B/As~~ costs, losses, or expenses related to reserve requirements under Regulation D, premium rates imposed by the ~~Lender~~Federal Deposit Insurance Corporation, or discount or rediscount rates, applicable to that ineligible Bankers' Acceptance. ~~Notwithstanding any other provision~~ If the costs and expenses of this Agreement, to the extent the Lender is unable to accept drafts, the Lender may make an advance to the Borrower in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). The principal amount of a B/A Equivalent Loan shall be equal to the face amount of the applicable draft that would otherwise be issued to the Lender in connection therewith, and the provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period Agent with respect to outstanding Bankers' Acceptances increase as a ~~B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment~~ result of ~~B/A Borrowings (other than B/A Equivalent Loans)~~any Regulatory Development, each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such then Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The Lender is hereby authorized (in accordance with a Borrowing Request relating pay to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by the Lender. The Lender shall not be liable for any damageAgent, ~~loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers~~on demand, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by the Borrower to the Lender in respect of each B/A accepted by the Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid to the Lender at the time of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it. 2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the ~~aggregate~~ increase in such costs and expenses. All costs, losses, and expenses referred to in this Section 2.06(e) shall be specified in certificates provided to Borrower by Agent and shall not be subject to criticism by Borrower absent manifest error. (f) Borrower shall presign drafts for Bankers' Acceptances created on its behalf, which shall be maintained in safekeeping by Agent for Borrower. Each such draft shall have the face ~~amount~~ amount, issuance date, and maturity date left blank, but shall have the name of ~~such B/As~~ Agent and the draft number inserted and shall be executed manually in the name and on ~~the last day~~ behalf of the ~~Contract Period~~ applicable Borrower by a Responsible Official thereof. All drafts for Borrower and for Agent shall be numbered sequentially for ease of identification and reference. Prior to accepting any draft, Agent shall hold such ~~B/As~~draft in safekeeping on behalf of Borrower for disposition in the manner hereinafter set forth. If Agent, upon accepting any draft, shall appropriately fill out the draft as to face amount, issuance date, maturity date, commodity, and destination of the commodity to be shipped or purchased with the proceeds, for which purpose Borrower ~~fails to make such payment, such maturing B/As~~ hereby irrevocably appoints Agent as its agent and attorney-in-fact. Such draft thereupon shall be deemed to have been ~~converted on the last day~~ issued by Borrower as of the Contract Period into a Canadian Prime Loan in an amount equal to the face amount of such B/As and the Borrower shall be deemed to have irrevocably requested such conversion without the execution of a Borrowing Request. 2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due to the Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, the Borrowers shall have no further liability in respect of such B/A and the Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waived.

Appears in 1 contract

Samples: Revolving Credit Agreement (Pier 1 Imports Inc/De)

Bankers’ Acceptances. ~~2.5.1 Subject~~ (a) Notwithstanding anything to the contrary contained herein, any Local Fronting Lender may agree (in its sole discretion from time to time) to create bankers’ acceptances under its Currency Sublimit by way of the acceptance and discount of Drafts (the “Acceptances”) pursuant to this Section 2.31; provided, however, that no Local Fronting Lender shall have any obligation to create and/or discount Acceptances, regardless of any prior practice of doing so for the account of such Local Borrowing Subsidiary. Any Acceptances created pursuant to this Section 2.31 shall be denominated in the Permitted Foreign Currency for the relevant Local Fronting Lender (and not in Dollars), and shall be for such tenor and in such amount as may be mutually agreed upon by the relevant Local Fronting Lender and Local Borrowing Subsidiary; provided, however, that in no event shall any Acceptance mature after the date which is 30 days prior to the Revolving Termination Date with respect to the InitialTranche A Revolving Facility (or such later date as the applicable Local Fronting Lender may agree in its sole discretion). (b) Unless the relevant Local Borrowing Subsidiary and Local Fronting Lender otherwise agree, the relevant Local Borrowing Subsidiary shall give to the relevant Local Fronting Lender not less than two Business Days’ prior written notice of its intent to borrow by way of Acceptances from any Local Fronting Lender which has agreed to accept and discount Drafts for the account of such Local Borrowing Subsidiary, which notice shall be accompanied by (i) a Draft which has been completed, executed and delivered by a duly authorized officer of such Local Borrowing Subsidiary and (ii) such other documents, instruments and certificates as such Local Fronting Lender reasonably may request; provided, however, that, after giving effect to the creation of such Acceptance, the Local Outstandings owing to such Local Fronting Lender shall not exceed the amount equal to its Currency Sublimit then in effect. On the requested borrowing date, the relevant Local Fronting Lender will accept such Draft and discount such accepted Draft in accordance with the provisions of Section 2.31(c). (c) Any Local Fronting Lender may, in its sole discretion, elect to discount Drafts of the relevant Local Borrowing Subsidiary on the date upon which such Local Fronting Lender accepts such Drafts by discounting such Draft at the rate per annum equal to the Local Rate (which may be a different rate than the Local Rate then payable on account of Local Loans in such Permitted Foreign Currency) then in effect plus the Applicable Margin then in effect for Local Rate Loans; provided, however, that, unless the relevant Local Fronting Lender and Local Borrowing Subsidiary otherwise agree, such discount shall be calculated by, first, discounting the aggregate face amount of such Draft at the rate per annum equal to the Local Rate then in effect and, second, discounting the result thereof at the rate per annum equal to the Applicable Margin then in effect for Local Rate Loans. Promptly following such discounting (and, in any event, on the date thereof), such Local Fronting Lender shall make available to such Local Borrowing Subsidiary the amount equal to the discounted face amount of such Draft in the manner in which such Local Fronting Lender makes available Local Loans pursuant to Section 2.5(b). (d) Each Local Borrowing Subsidiary hereby unconditionally agrees to pay to the relevant Local Fronting Lender the aggregate, undiscounted face amount of each Draft accepted by such Local Fronting Lender hereunder on the maturity date thereof (or on such earlier date upon which the obligations of such Local Borrowing Subsidiary under this Agreement shall become or shall have been declared due and payable pursuant to the terms and conditions of this Agreement, any Borrower may request a Borrowing by presenting drafts for acceptance and purchase as B/As by the Lender. Notwithstanding any other provision of this Agreement, to the extent the Lender is unable to accept drafts, the Lender may make an advance to the Borrower in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). ~~The principal~~ Interest shall accrue on any amount of owing pursuant to this Section 2.31(d) which is not paid when due (whether by scheduled maturity, mandatory prepayment, acceleration or otherwise) from the date such amount becomes due until paid in full at a ~~B/A Equivalent Loan shall be~~ fluctuating rate per annum equal to the ~~face amount of the applicable draft that~~ rate which would ~~otherwise~~ then be issued to the Lender in connection therewith, and the provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by the Lender. The Lender shall not be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears payable on any ~~B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid~~ overdue Local Rate Loans and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by such Local Borrowing Subsidiary upon demand by such Local Fronting Lender. (e) Each Tranche A Revolving Lender hereby unconditionally and irrevocably agrees to purchase undivided participating interests in the ~~Borrower~~ Acceptances created by each Local Fronting Lender in accordance with the provisions of Section 2.32. (f) Notwithstanding anything to the ~~Lender in respect of each B/A accepted~~ contrary contained herein, the indefeasible prepayment by the ~~Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid~~ relevant Local Borrowing Subsidiary to the relevant Local Fronting Lender ~~at the time~~ of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount all or ~~otherwise dispose~~ a portion of any or all B/As accepted and purchased by it. 2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such B/As on the last day of the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As outstanding Acceptance shall be deemed to ~~have been converted on~~ constitute a prepayment of such portion of such Acceptance for all purposes hereunder, regardless of whether the ~~last day~~ relevant Local Fronting Lender has distributed such amount to the holder of the Contract Period into a Canadian Prime Loan in an amount equal to the face amount of such B/As and the Borrower shall be deemed to have irrevocably requested such conversion without the execution of a Borrowing Requestunderlying Draft. 2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due to the Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, the Borrowers shall have no further liability in respect of such B/A and the Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waived.

Appears in 1 contract

Samples: Asset Based Revolving Credit Agreement (Revlon Inc /De/)

Bankers’ Acceptances. ~~2.5.1 Subject to~~ (1) To facilitate the ~~terms and conditions of~~ procedures contemplated in this Agreement, ~~any~~ the Borrower ~~may request~~ irrevocably appoints each Lender from time to time as the attorney-in-fact of the Borrower to execute, endorse and deliver on behalf of the Borrower drafts (including book based forms and electronic paper) in the forms prescribed by such Lender (if such Lender is a ~~Borrowing~~ BA Lender) for bankers’ acceptances denominated in Cdn. Dollars (each such executed draft which has not yet been accepted by ~~presenting drafts~~ a Lender being referred to as a “Draft”) or non-interest-bearing promissory notes of the Borrower in favour of such Lender (if such Lender is a Non BA Lender) (each such promissory note being referred to as a “BA Equivalent Note”). Each Bankers’ Acceptance and BA Equivalent Note executed and delivered by a Lender on behalf of the Borrower as provided for ~~acceptance~~ in this Section shall be as binding upon the Borrower as if it had been executed and ~~purchase~~ delivered by a duly authorized officer of the Borrower. (2) Notwithstanding Section 6.01(1), the Borrower will from time to time as ~~B/As~~ required by the ~~Lender. Notwithstanding any other provision of this Agreement,~~ applicable Lender provide to the ~~extent~~ Lenders an appropriate number of Drafts drawn by the Borrower upon each BA Lender and either payable to a clearing service (if such BA Lender is ~~unable to accept drafts, the Lender may make an advance~~ a member thereof) or payable to the Borrower and endorsed in ~~lieu~~ blank by the Borrower (if such BA Lender is not a member of ~~purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A~~ such clearing service) and an appropriate number of BA Equivalent ~~Loan”)~~Notes in favour of each Non BA Lender. The dates, the maturity dates and the principal amounts of all Drafts and BA Equivalent Notes delivered by the Borrower shall be left blank, to be completed by the Lenders as required by this Agreement. All such Drafts or BA Equivalent Notes shall be held by each Lender subject to the same degree of care as if they were such Lender’s own property kept at the place at which the Drafts or BA Equivalent Notes are ordinarily kept by such Lender. Each Lender, upon written request of the Borrower, will promptly advise the Borrower of the number and designation, if any, of the Drafts and BA Equivalent Notes then held by it. No Lender shall be liable for its failure to accept a Draft or purchase a BA Equivalent Note as required by this Agreement if the cause of such failure is, in whole or in part, due to the failure of the Borrower to provide on a timely basis appropriate Drafts or BA Equivalent Notes to the applicable Lender as may be requested by such Lender on a timely basis from time to time. (3) The Agent, promptly following receipt of a Drawdown Notice requesting Bankers’ Acceptances, shall (i) advise each BA Lender of the face amount and the term of the Draft to be accepted by it and (ii) advise each applicable Non BA Lender of the face amount and term of the BA Equivalent Note to be purchased by it. All Drafts to be accepted from time to time by each BA Lender that is a member of a clearing service shall be payable to such clearing service. The term of all Bankers’ Acceptances and BA Equivalent Notes issued pursuant to any Drawdown Notice, Conversion Notice or Rollover Notice shall be identical. Each Bankers’ Acceptance and BA Equivalent Note shall be dated the Drawdown Date on which it is issued and shall be for a term of 1, 2, 3 or 6 months, subject to availability. The face amount of the Draft (or the aggregate face amount of the Drafts) to be accepted at any time by each Lender which is a ~~B/A Equivalent Loan shall be equal to~~ BA Lender, and the face amount of the ~~applicable draft that would otherwise~~ BA Equivalent Notes to be ~~issued~~ purchased at any time by each Lender which is a Non BA Lender, shall be determined by the Agent based upon the amounts of their respective Commitments under the Revolving Facility. In determining a Lender’s Proportionate Share of a request for Bankers’ Acceptances, the Agent, in its sole discretion, shall be entitled to increase or decrease the face amount of any Draft, or BA Equivalent Note to the nearest $1,000. (4) Each BA Lender ~~in connection therewith~~shall complete and accept on the applicable Drawdown Date, Conversion Date or Rollover Date, a Draft having a face amount (or Drafts having the face amounts) and term advised by the Agent pursuant to subsection 6.01(3). Each applicable BA Lender shall purchase on the applicable Drawdown Date, Conversion Date or Rollover Date, the Bankers’ Acceptance accepted by it, for an aggregate price equal to the BA Discount Proceeds of such Bankers’ Acceptance. The Borrower shall ensure that there is delivered to each applicable BA Lender that is a member of a clearing service the completed Bankers’ Acceptances, and ~~the provisions of this Agreement shall apply to~~ such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The BA Lender is hereby authorized to release the Bankers’ Acceptance accepted by it to such clearing house upon receipt of confirmation that such clearing house holds such Bankers’ Acceptance for the account of such BA Lender. (5) Each Non BA Lender, in ~~accordance with~~ lieu of accepting Drafts or purchasing Bankers’ Acceptances on any Drawdown Date, Conversion Date or Rollover Date, will complete and purchase from the Borrower on such Drawdown Date, Conversion Date or Rollover Date, a ~~Borrowing Request relating~~ BA Equivalent Note in a face amount and for a term identical to the face amount and term of the Draft which such Non BA Lender would have been required to accept on such Drawdown Date, Conversion Date or Rollover Date, if it were a ~~B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the~~ BA Lender~~; provided that the aggregate amount thereof is~~ , for a price equal to the ~~aggregate amount~~ BA Discount Proceeds of ~~B/As required to be accepted and purchased by the Lender~~such BA Equivalent Note. ~~The~~ Each Non BA Lender shall ~~not~~ be ~~liable for~~ entitled without charge to exchange any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided BA Equivalent Note held by it for ~~any reason, (c) accepted~~ two or ~~accepted~~ more BA Equivalent Notes of identical date and ~~purchased by it hereunder~~aggregate face amount, and ~~(d) cancelled at their respective maturities. On request by or on behalf of any Borrower,~~ the Borrower will execute and deliver to such Non BA Lender such replacement BA Equivalent Notes and such Non BA Lender shall ~~cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by~~ return the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds original BA Equivalent Note to the Borrower ~~in respect thereof. An Acceptance Fee~~ for cancellation. (6) The Borrower shall ~~be payable by the Borrower~~ pay to ~~the~~ each BA Lender in respect of each ~~B/A~~ Draft tendered by the Borrower to and accepted by ~~the Lender~~ such BA Lender, and ~~such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid~~ to ~~the Lender at the time of acceptance of such B/A by the~~ each Non BA Lender in ~~the event that the Borrower does not request the Lender~~ respect of each BA Equivalent Note tendered to ~~purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted~~ and purchased by itsuch Non BA Lender, as a condition of such acceptance or purchase, the BA Stamping Fee. ~~2.5.8 With respect to~~ (7) Upon acceptance of each ~~B/A Borrowing, at~~ Draft or ~~before 10:00 a.m. one Business Day before the last day~~ purchase of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Periodeach BA Equivalent Note, the Borrower shall ~~provide payment~~ pay to the applicable Lender ~~of an amount equal~~ the related fee specified in Section 6.01(6), and to facilitate payment such Lender shall be entitled to deduct and retain for its own account the ~~aggregate face~~ amount of such ~~B/As on~~ fee from the ~~last day~~ amount to be transferred by such Lender to the Agent for the account of the ~~Contract Period~~ Borrower pursuant to this Agreement in respect of the sale of the related Bankers’ Acceptance or of such ~~B/As.~~ BA Equivalent Note. (8) If the Agent determines in good faith, which determination shall be final, conclusive and binding upon the Borrower, and so notifies the Borrower, that there does not exist at the applicable time a normal market in Canada for the purchase and sale of bankers’ acceptances, any right of the Borrower ~~fails~~ to ~~make~~ require the Lenders to purchase Bankers’ Acceptances and BA Equivalent Notes under this Agreement shall be suspended until the Agent determines that such ~~payment~~market does exist and gives notice thereof to the Borrower and any Drawdown Notice, ~~such maturing B/As~~ Conversion Notice or Rollover Notice requesting Bankers’ Acceptances shall be deemed to ~~have been converted on~~ be a Drawdown Notice or Conversion Notice requesting a Prime Rate Advance in a similar aggregate principal amount. (9) On the ~~last day~~ date of maturity of each Bankers’ Acceptance or BA Equivalent Note, the Borrower shall pay to the Agent, for the account of the ~~Contract Period into a~~ holder of such Bankers’ Acceptance or BA Equivalent Note, in Canadian ~~Prime Loan in~~ Dollars an amount equal to the face amount of such ~~B/As and~~ Bankers’ Acceptance or BA Equivalent Note, as the case may be. The obligation of the Borrower to make such payment shall not be prejudiced by the fact that the holder of such Bankers’ Acceptance is the Lender that accepted such Bankers’ Acceptances. No days of grace shall be claimed by the Borrower for the payment at maturity of any Bankers’ Acceptance or BA Equivalent Note. If the Borrower does not make such payment, from the proceeds of an Advance obtained under this Agreement or otherwise, the amount of such required payment shall be deemed to ~~have irrevocably requested such conversion without the execution of~~ be a ~~Borrowing Request. 2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due~~ Prime Rate Advance to the Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower ~~who requested such B/A shall pay~~ from the Lender that ~~has~~ accepted ~~and~~ such Banker’s Acceptance or purchased such ~~B/A~~ BA Equivalent Note. (10) The signature of any duly authorized officer of the ~~full face amount~~ Borrower on a Draft or a BA Equivalent Note may be mechanically reproduced in facsimile, and all Drafts and BA Equivalent Notes bearing such facsimile signature shall be as binding upon the Borrower as if they had been manually signed by such officer, notwithstanding that such Person whose manual or facsimile signature appears on such Draft or BA Equivalent Note may no longer hold office at the date of such ~~B/A and, after such payment,~~ Draft or BA Equivalent Note or at the ~~Borrowers shall have no further liability in respect~~ date of acceptance of such ~~B/A and the~~ Draft by a BA Lender ~~shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If~~ or at any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waivedtime thereafter.

Appears in 1 contract

Samples: Credit Agreement (Sierra Wireless Inc)

Bankers’ Acceptances. ~~2.5.1 Subject~~ (a) Notwithstanding anything to the contrary contained herein, any Local Fronting Lender may agree (in its sole discretion from time to time) to create bankers' acceptances under its Currency Sublimit by way of the acceptance and discount of Drafts (the "Acceptances") pursuant to this subsection 6.9; provided that no Local Fronting Lender shall have any obligation to create and/or discount Acceptances, regardless of any prior practice of doing so for the account of such Local Borrowing Subsidiary. Any Acceptances created pursuant to this subsection 6.9 shall be denominated in the Denomination Currency for the relevant Local Fronting Lender (and not in Dollars), and shall be for such tenor and in such amount as may be mutually agreed upon by the relevant Local Fronting Lender and Local Borrowing Subsidiary; provided that in no event shall any Acceptance mature after the date which is 30 days prior to the Termination Date. (b) Unless the relevant Local Borrowing Subsidiary and Local Fronting Lender otherwise agree, the relevant Local Borrowing Subsidiary shall give to the relevant Local Fronting Lender not less than two Business Days' prior written notice of its intent to borrow by way of Acceptances from any Local Fronting Lender which has agreed to accept and discount Drafts for the account of such Local Borrowing Subsidiary, which notice shall be accompanied by (i) a Draft which has been completed, executed and delivered by a duly authorized officer of such Local Borrowing Subsidiary and (ii) such other documents, instruments and certificates as such Local Fronting Lender reasonably may request; provided that, after giving effect to the creation of such Acceptance, the Local Outstandings owing to such Local Fronting Lender shall not exceed the amount equal to its Currency Sublimit then in effect. On the requested borrowing date, the relevant Local Fronting Lender will accept such Draft and discount such accepted Draft in accordance with the provisions of subsection 6.9(c). (c) Any Local Fronting Lender may, in its sole discretion, elect to discount Drafts of the relevant Local Borrowing Subsidiary on the date upon which such Local Fronting Lender accepts such Drafts by discounting such Draft at the rate per annum equal to the Local Rate (which may be a different rate than the Local Rate then payable on account of Local Loans in such Denomination Currency) then in effect plus the Applicable Margin then in effect for Local Rate Loans; provided that, unless the relevant Local Fronting Lender and Local Borrowing Subsidiary otherwise agree, such discount shall be calculated by, first, discounting the aggregate face amount of such Draft at the rate per annum equal to the Local Rate then in effect and, second, discounting the result thereof at the rate per annum equal to the Applicable Margin then in effect for Local Rate Loans. Promptly following such discounting (and, in any event, on the date thereof), such Local Fronting Lender shall make available to such Local Borrowing Subsidiary the amount equal to the discounted face amount of such Draft in the manner in which such Local Fronting Lender makes available Local Loans pursuant to subsection 6.3. (d) Each Local Borrowing Subsidiary hereby unconditionally agrees to pay to the relevant Local Fronting Lender the aggregate, undiscounted face amount of each Draft accepted by such Local Fronting Lender hereunder on the maturity date thereof (or on such earlier date upon which the obligations of such Local Borrowing Subsidiary under this Agreement shall become or shall have been declared due and payable pursuant to the terms and conditions of this Agreement, any Borrower may request a Borrowing by presenting drafts for acceptance and purchase as B/As by the Lender. Notwithstanding any other provision of this Agreement, to the extent the Lender is unable to accept drafts, the Lender may make an advance to the Borrower in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). ~~The principal~~ Interest shall accrue on any amount of owing pursuant to this subsection 6.9(d) which is not paid when due (whether by scheduled maturity, mandatory prepayment, acceleration or otherwise) from the date such amount becomes due until paid in full at a ~~B/A Equivalent Loan shall be~~ fluctuating rate per annum equal to the ~~face amount of the applicable draft that~~ rate which would ~~otherwise~~ then be issued to the Lender in connection therewith, and the provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by the Lender. The Lender shall not be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears payable on any ~~B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid~~ overdue Local Rate Loans and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by such Local Borrowing Subsidiary upon demand by such Local Fronting Lender. (e) Each Multi-Currency Lender hereby unconditionally and irrevocably agrees to purchase undivided participating interests in the ~~Borrower~~ Acceptances created by each Local Fronting Lender in accordance with the provisions of subsection 6.4. (f) Notwithstanding anything to the ~~Lender in respect of each B/A accepted~~ contrary contained herein, the indefeasible prepayment by the ~~Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid~~ relevant Local Borrowing Subsidiary to the relevant Local Fronting Lender ~~at the time~~ of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount all or ~~otherwise dispose~~ a portion of any or all B/As accepted and purchased by it. 2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such B/As on the last day of the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As outstanding Acceptance shall be deemed to ~~have been converted on~~ constitute a prepayment of such portion of such Acceptance for all purposes hereunder, regardless of whether the ~~last day~~ relevant Local Fronting Lender has distributed such amount to the holder of the Contract Period into a Canadian Prime Loan in an amount equal to the face amount of such B/As and the Borrower shall be deemed to have irrevocably requested such conversion without the execution of a Borrowing Requestunderlying Draft. 2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due to the Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, the Borrowers shall have no further liability in respect of such B/A and the Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waived.

Appears in 1 contract

Samples: Credit Agreement (Revlon Consumer Products Corp)

Bankers’ Acceptances. ~~2.5.1 Subject to~~ (1) To facilitate the ~~terms and conditions of~~ procedures contemplated in this Agreement, ~~any~~ the Borrower ~~may request~~ irrevocably appoints each Revolving Lender from time to time as the attorney-in-fact of the Borrower to execute, endorse and deliver on behalf of it drafts (including book based forms and electronic paper) in the forms prescribed by such Revolving Lender (if such Revolving Lender is a ~~Borrowing~~ BA Lender) for bankers’ acceptances denominated in Cdn. Dollars (each such executed draft which has not yet been accepted by ~~presenting drafts~~ a Revolving Lender being referred to as a “Draft”) or non interest-bearing promissory notes of it in favour of such Revolving Lender (if such Revolving Lender is a Non BA Lender) (each such promissory note being referred to as a “BA Equivalent Note”). Each Bankers’ Acceptance and BA Equivalent Note executed and delivered by a Revolving Lender on behalf of the Borrower as provided for ~~acceptance~~ in this Section shall be as binding upon the Borrower as if it had been executed and ~~purchase~~ delivered by a duly authorized officer of the Borrower. (2) Notwithstanding Section 6.01(1), the Borrower will from time to time as ~~B/As~~ required by the ~~Lender. Notwithstanding any other provision of this Agreement,~~ applicable Revolving Lender provide to the ~~extent~~ Revolving Lenders an appropriate number of Drafts drawn by the Borrower upon each BA Lender and either payable to a clearing service (if such BA Lender is ~~unable to accept drafts, the Lender may make an advance~~ a member thereof) or payable to the Borrower and endorsed in ~~lieu~~ blank by the Borrower (if such BA Lender is not a member of ~~purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A~~ such clearing service) and an appropriate number of BA Equivalent ~~Loan”)~~Notes in favour of each Non BA Lender. The dates, the maturity dates and the principal amounts of all Drafts and BA Equivalent Notes delivered by the Borrower shall be left blank, to be completed by the Revolving Lenders as required by this Agreement. All such Drafts or BA Equivalent Notes shall be held by each Revolving Lender subject to the same degree of care as if they were such Revolving Lender’s own property kept at the place at which the Drafts or BA Equivalent Notes are ordinarily kept by such Revolving Lender. Each Revolving Lender, upon written request of the Borrower, will promptly advise the Borrower of the number and designation, if any, of the Drafts and BA Equivalent Notes then held by it. No Revolving Lender shall be liable for its failure to accept a Draft or purchase a BA Equivalent Note as required by this Agreement if the cause of such failure is, in whole or in part, due to the failure of the Borrower to provide on a timely basis appropriate Drafts or BA Equivalent Notes to the applicable Revolving Lender as may be requested by such Revolving Lender on a timely basis from time to time. (3) The Agent, promptly following receipt of a Drawdown Notice, Conversion Notice or Rollover Notice requesting Bankers’ Acceptances, shall (i) advise each BA Lender of the face amount and the term of the Draft to be accepted by it and (ii) advise each applicable Non BA Lender of the face amount and term of the BA Equivalent Note to be purchased by it. All Drafts to be accepted from time to time by each BA Lender that is a member of a clearing service shall be payable to such clearing service. The term of all Bankers’ Acceptances and BA Equivalent Notes issued pursuant to any Drawdown Notice, Conversion Notice or Rollover Notice shall be identical. Each Bankers’ Acceptance and BA Equivalent Note shall be dated the Drawdown Date on which it is issued and shall be for a term of 1, 2, 3 or 6 months, subject to availability, provided that in no event shall the term of a Bankers’ Acceptance or a BA Equivalent Note extend beyond the Maturity Date. The face amount of the Draft (or the aggregate face amount of the Drafts) to be accepted at any time by each Revolving Lender which is a ~~B/A Equivalent Loan shall be equal to~~ BA Lender, and the face amount of the ~~applicable draft that would otherwise~~ BA Equivalent Notes to be ~~issued~~ purchased at any time by each Revolving Lender which is a Non BA Lender, shall be determined by the Agent based upon the amounts of their respective Commitments under the Revolving Facility. In determining a Revolving Lender’s Proportionate Share of a request for Bankers’ Acceptances, the Agent, in its sole discretion, shall be entitled to increase or decrease the face amount of any Draft, or BA Equivalent Note to the nearest Cdn.$1,000. (4) Each BA Lender ~~in connection therewith~~shall complete and accept on the applicable Drawdown Date, Conversion Date or Rollover Date a Draft having a face amount (or Drafts having the face amounts) and term advised by the Agent pursuant to subsection 6.01(3). Each applicable BA Lender shall purchase on the applicable Drawdown Date, Conversion Date or Rollover Date the Bankers’ Acceptance accepted by it, for an aggregate price equal to the BA Discount Proceeds of such Bankers’ Acceptance. The Borrower shall ensure that there is delivered to each applicable BA Lender that is a member of a clearing service the completed Bankers’ Acceptances, and ~~the provisions of this Agreement shall apply to~~ such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The BA Lender is hereby authorized to release the Bankers’ Acceptance accepted by it to such clearing house upon receipt of confirmation that such clearing house holds such Bankers’ Acceptance for the account of such BA Lender. (5) Each Non BA Lender, in ~~accordance with~~ lieu of accepting Drafts or purchasing Bankers’ Acceptances on any Drawdown Date, Conversion Date or Rollover Date, will complete and purchase from the Borrower on such Drawdown Date, Conversion Date or Rollover Date a ~~Borrowing Request relating~~ BA Equivalent Note in a face amount and for a term identical to the face amount and term of the Draft which such Non BA Lender would have been required to accept on such Drawdown Date, Conversion Date or Rollover Date if it were a ~~B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the~~ BA Lender~~; provided that the aggregate amount thereof is~~ , for a price equal to the ~~aggregate amount~~ BA Discount Proceeds of ~~B/As required to be accepted and purchased by the Lender~~such BA Equivalent Note. ~~The~~ Each Non BA Lender shall ~~not~~ be ~~liable for~~ entitled without charge to exchange any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided BA Equivalent Note held by it for ~~any reason, (c) accepted~~ two or ~~accepted~~ more BA Equivalent Notes of identical date and ~~purchased by it hereunder~~aggregate face amount, and ~~(d) cancelled at their respective maturities. On request by or on behalf of any Borrower,~~ the Borrower will execute and deliver to such Non BA Lender such replacement BA Equivalent Notes and such Non BA Lender shall ~~cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by~~ return the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds original BA Equivalent Note to the Borrower ~~in respect thereof. An Acceptance Fee~~ for cancellation. (6) The Borrower shall ~~be payable by the Borrower~~ pay to ~~the~~ each BA Lender in respect of each ~~B/A~~ Draft tendered by the Borrower to and accepted by ~~the Lender~~ such BA Lender, and ~~such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid~~ to ~~the Lender at the time of acceptance of such B/A by the~~ each Non BA Lender in ~~the event that the Borrower does not request the Lender~~ respect of each BA Equivalent Note tendered to ~~purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted~~ and purchased by itsuch Non BA Lender, as a condition of such acceptance or purchase, the BA Stamping Fee. ~~2.5.8 With respect to~~ (7) Upon acceptance of each ~~B/A Borrowing, at~~ Draft or ~~before 10:00 a.m. one Business Day before the last day~~ purchase of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Periodeach BA Equivalent Note, the Borrower shall ~~provide payment~~ pay to the applicable Revolving Lender ~~of an amount equal~~ the related fee specified in Section 6.01(6), and to facilitate payment such Revolving Lender shall be entitled to deduct and retain for its own account the ~~aggregate face~~ amount of such ~~B/As on~~ fee from the ~~last day~~ amount to be transferred by such Revolving Lender to the Agent for the account of the ~~Contract Period~~ Borrower pursuant to this Agreement in respect of the sale of the related Bankers’ Acceptance or of such ~~B/As.~~ BA Equivalent Note. (8) If the Agent determines in good faith, which determination shall be final, conclusive and binding upon the Borrower, and so notifies the Borrower, that there does not exist at the applicable time a normal market in Canada for the purchase and sale of bankers’ acceptances, any right of the Borrower ~~fails~~ to ~~make~~ require the Revolving Lenders to purchase Bankers’ Acceptances and BA Equivalent Notes under this Agreement shall be suspended until the Agent determines that such ~~payment~~market does exist and gives notice thereof to the Borrower and any Drawdown Notice, ~~such maturing B/As~~ Conversion Notice or Rollover Notice requesting Bankers’ Acceptances shall be deemed to ~~have been converted on~~ be a Drawdown Notice or Conversion Notice requesting a Prime Rate Advance in a similar aggregate principal amount. (9) On the ~~last day~~ date of maturity of each Bankers’ Acceptance or BA Equivalent Note, the Borrower shall pay to the Agent, for the account of the ~~Contract Period into a~~ holder of such Bankers’ Acceptance or BA Equivalent Note, in Canadian ~~Prime Loan in~~ Dollars an amount equal to the face amount of such ~~B/As~~ Bankers’ Acceptance or BA Equivalent Note, as the case may be. The obligation of the Borrower to make such payment shall not be prejudiced by the fact that the holder of such Bankers’ Acceptance is the Revolving Lender that accepted such Bankers’ Acceptances. No days of grace shall be claimed by the Borrower for the payment at maturity of any Bankers’ Acceptance or BA Equivalent Note. If the Borrower does not make such payment, from the proceeds of an Advance obtained under this Agreement or otherwise, the amount of such required payment shall be deemed to be a Prime Rate Advance to the Borrower from the Revolving Lender that accepted such Bankers’ Acceptance or purchased such BA Equivalent Note. In the event that the Borrower does not provide to the Agent a Drawdown Notice in connection with the Rollover of any outstanding and maturing Bankers Acceptances or BA Equivalent Notes, the Borrower shall be deemed to have ~~irrevocably~~ requested ~~such conversion without~~ a Prime Rate Advance in the execution of a Borrowing Request. 2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due to the Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount of such ~~B/A and~~maturing Bankers Acceptances or BA Equivalent Notes. (10) The signature of any duly authorized officer of the Borrower on a Draft or a BA Equivalent Note may be mechanically reproduced in facsimile, ~~after~~ and all Drafts and BA Equivalent Notes bearing such ~~payment~~facsimile signature shall be as binding upon the Borrower as if they had been manually signed by such officer, notwithstanding that such Person whose manual or facsimile signature appears on such Draft or BA Equivalent Note may no longer hold office at the ~~Borrowers shall have no further liability in respect~~ date of such B/Draft or BA Equivalent Note or at the date of acceptance of such Draft by a BA Lender or at any time thereafter. (11) A ~~and the~~ Non-BA Lender shall be entitled to ~~all benefits of, and be responsible for all payments due~~ make loans to ~~third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing,~~ the ~~Borrowers shall deposit in an interest bearing account with the Lender,~~ Borrower in the ~~name~~ same manner as if a BA Equivalent Note was executed and delivered by such Revolving Lender on behalf of the ~~Lender, an amount in cash equal to~~ Borrower (a “BA Equivalent Loan”) but without the ~~face amount~~ requirement of ~~all B/As then outstanding. Such deposit~~ executing and delivering documentation and such BA Equivalent Loans shall be ~~held by the Lender as collateral for the payment~~ treated in all other respects like a BA Equivalent Note executed and ~~performance of the obligations of the Borrowers under~~ delivered pursuant to this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waivedSection 6.01.

Appears in 1 contract

Samples: Credit Agreement (Nordion Inc.)

Bankers’ Acceptances. ~~2.5.1 Subject~~ (1) To facilitate the issuance of Bankers’ Acceptances requested by the Borrowers pursuant to ~~the terms and conditions of~~ this Agreement, ~~any Borrower may request a Borrowing~~ the Borrowers irrevocably appoint each Lender from time to time as the attorney‑in‑fact of the Borrowers to execute, endorse and deliver on behalf of the Borrowers drafts in the forms prescribed by ~~presenting drafts for acceptance and purchase as B/As by the Lender. Notwithstanding any other provision of this Agreement, to the extent the~~ such Lender (if such Lender is ~~unable to accept drafts, the Lender may make an advance to the Borrower~~ a BA Lender) for bankers’ acceptances denominated in ~~lieu of purchasing a~~ Canadian Dollars (each such executed draft that ~~it would otherwise be required~~ has not yet been accepted by a Lender being referred to ~~purchase hereunder (~~as a “~~B/A~~ Draft”) or non interest‑bearing promissory notes of the Borrowers in favour of such Lender (if such Lender is a Non‑BA Lender) (each such promissory note being referred to as a “BA Equivalent ~~Loan~~Note”). Each Bankers’ Acceptance and BA Equivalent Note executed and delivered by a Lender on behalf of the Borrowers as provided for in this Section 5.01(1) will be as binding upon the Borrowers as if they had been executed and delivered by a duly authorized officer of the Borrowers. (2) Notwithstanding the provisions of Section 5.01(1), the Borrowers will from time to time as required by the applicable Lender provide to (a) each BA Lender an appropriate number of Drafts drawn by the Borrowers upon such BA Lender and either payable to a clearing service (if such BA Lender is a member thereof) or payable to the Borrowers and endorsed in blank by the Borrowers (if such BA Lender is not a member of such clearing service), and (b) each Non‑BA Lender an appropriate number of BA Equivalent Notes in favour of such Non‑BA Lender. The ~~principal~~ dates, maturity dates and face amounts of all Drafts and BA Equivalent Notes delivered by the Borrowers must be left blank, to be completed by the Lenders as required by this Agreement. Each Lender to which a Draft or BA Equivalent Note has been delivered by the Borrowers will exercise the same degree of care in the custody of such Draft or BA Equivalent Note as such Lender would exercise with respect to its own property kept at the place at which the Drafts or BA Equivalent Notes are ordinarily kept by such Lender. Each Lender, upon the written request of the Borrowers, will promptly advise the Borrowers of the number and designation, if any, of the Drafts and BA Equivalent Notes then held by it. No Lender will be liable for its failure to accept a Draft or purchase a BA Equivalent Note as required by this Agreement if the cause of such failure is, in whole or in part, due to the failure of the Borrowers to provide on a timely basis appropriate Drafts or BA Equivalent Notes to the applicable Lender as requested by such Lender on a timely basis. (3) Promptly following receipt of a Drawdown Notice requesting Bankers’ Acceptances, the Agent will (a) advise each BA Lender of the face amount and the term of the Draft to be accepted by it, and (b) advise each applicable Non‑BA Lender of the face amount and term of the BA Equivalent Note to be purchased by it. All Drafts to be accepted from time to time by each BA Lender that is a member of a clearing service will be payable to such clearing service. The term of all Bankers’ Acceptances and BA Equivalent Notes issued pursuant to any Drawdown Notice must be identical. Each Bankers’ Acceptance and BA Equivalent Note must be dated the Drawdown Date on which it is issued and will be for a term of between 1 month to 3 months (subject to market availability), provided that in no event will the term of a Bankers’ Acceptance or a BA Equivalent Note extend beyond the Maturity Date. The face amount of the Draft (or the aggregate face amount of the Drafts) to be accepted at any time by each Lender that is a ~~B/A Equivalent Loan shall be equal to~~ BA Lender, and the face amount of the ~~applicable draft~~ BA Equivalent Note (or the aggregate face amount of the BA Equivalent Notes) to be purchased at any time by each Lender that ~~would otherwise~~ is a Non‑BA Lender, will be ~~issued to the Lender in connection therewith, and the provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment~~ determined by the ~~Lender~~ Agent based upon the amounts of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased their respective Commitments under the Credit Facility ~~shall extend beyond the Maturity Date~~and will be a multiple of $1,000. ~~2.5.3 To facilitate availment of B/A Borrowings~~ (~~other than B/A Equivalent Loans), each Borrower hereby appoints~~ 4) Each BA Lender will complete and accept on the ~~Lender as its attorney to sign~~ Drawdown Date a Draft having a face amount (or Drafts having the face amounts) and ~~endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary~~ term advised by the ~~Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility~~ Agent pursuant to ~~furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement~~Section 5.01(3). Each ~~Borrower recognizes and agrees that~~ applicable BA Lender will purchase on the Drawdown Date all ~~B/As signed and/or endorsed~~ Bankers’ Acceptances accepted by it, for an aggregate price equal to the ~~Lender on behalf~~ BA Discount Proceeds of such ~~Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower~~Bankers’ Acceptances. The Borrowers will ensure that there is delivered to each applicable BA Lender that is a member of a clearing service, and such BA Lender is hereby authorized to release, the Bankers’ Acceptance accepted by it to such clearing service upon receipt of confirmation that such clearing service holds such Bankers’ Acceptance for the account of such BA Lender. (5) Each Non‑BA Lender, in ~~accordance with~~ lieu of accepting Drafts or purchasing Bankers’ Acceptances on the Drawdown Date, will complete and purchase from the Borrowers on the Drawdown Date a ~~Borrowing Request relating~~ BA Equivalent Note in a face amount and for a term identical to the face amount and term of the Drafts that such Non‑BA Lender would have been required to accept on the Drawdown Date if it were a ~~B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the~~ BA Lender~~; provided that the aggregate amount thereof is~~ , for a price equal to the ~~aggregate amount~~ BA Discount Proceeds of ~~B/As required~~ such BA Equivalent Note (determined as if such BA Equivalent Note were a Bankers’ Acceptance). Each Non‑BA Lender will be entitled, without charge, to ~~be accepted and purchased by the Lender. The Lender shall not be liable for~~ exchange any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided BA Equivalent Note held by it for ~~any reason, (c) accepted~~ two or ~~accepted~~ more BA Equivalent Notes of identical date and ~~purchased by it hereunder~~aggregate face amount, and ~~(d) cancelled at their respective maturities. On request by or on behalf of any Borrower,~~ the Borrowers will execute and deliver to such Non‑BA Lender ~~shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of~~ such ~~Borrower~~ replacement BA Equivalent Notes and ~~which are held by~~ such Non‑BA Lender will return the ~~Lender and are not required~~ original BA Equivalent Note to ~~be issued in accordance with such Borrower’s irrevocable notice~~the Borrowers for cancellation. ~~2.5.4 Drafts of a Borrower~~ (6) The Borrowers will pay to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by the Borrower to the BA Lender in respect of each ~~B/A~~ Draft tendered by the Borrowers to and accepted by ~~the Lender~~ such BA Lender, and ~~such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid~~ to ~~the Lender at the time of acceptance of such B/A by the~~ each Non‑BA Lender in ~~the event that the Borrower does not request the Lender~~ respect of each BA Equivalent Note tendered to ~~purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted~~ and purchased by ~~it. 2.5.8 With respect to each B/A Borrowing~~such Non‑BA Lender, at as a condition of such acceptance or ~~before 10:00 a.m. one Business Day before~~ purchase, the ~~last day~~ BA Stamping Fee. The parties agree that in lieu of the ~~Contract Period~~ payment by the Borrowers of such ~~B/As~~BA Stamping Fee, each Lender will deduct and retain for its own account the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such ~~B/As on~~ fee from the ~~last day~~ amount to be transferred by such Lender to the Agent for the account of the ~~Contract Period~~ Borrowers pursuant to this Agreement in respect of the sale of the related Bankers’ Acceptance or of such ~~B/As. If~~ BA Equivalent Note. (7) On the ~~Borrower fails~~ date of maturity of each Bankers’ Acceptance or BA Equivalent Note, the Borrowers will pay to ~~make such payment~~the Agent, ~~such maturing B/As shall be deemed to have been converted on~~ for the ~~last day~~ account of the ~~Contract Period into a~~ holder of such Bankers’ Acceptance or BA Equivalent Note, in Canadian ~~Prime Loan in~~ Dollars an amount equal to the face amount of such ~~B/As and~~ Bankers’ Acceptance or BA Equivalent Note, as the ~~Borrower shall~~ case may be. The obligation of the Borrowers to make such payment will not be ~~deemed to have irrevocably requested~~ prejudiced by the fact that the holder of such ~~conversion without the execution of a Borrowing Request. 2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due to~~ Bankers’ Acceptance is the Lender ~~in respect of a B/A~~ that accepted ~~and purchased by it pursuant to this Agreement which might exist solely by reason of~~ such ~~B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any~~ Bankers’ Acceptances. No days of grace ~~if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable~~ may be claimed by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, the Borrowers shall have no further liability in respect of such B/A and the Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of ~~the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement~~any Bankers’ Acceptance or BA Equivalent Note. If the Borrowers ~~are required to provide an amount~~ does not make such payment from the proceeds of ~~cash collateral hereunder~~ a Loan obtained under this Agreement or otherwise, including as a result of having failed to provide a Rollover Notice, the ~~occurrence~~ amount of ~~an Event of Default,~~ such ~~amount (~~required payment will be deemed to ~~the extent not applied as aforesaid) shall~~ be ~~returned~~ a Prime Rate Loan to the Borrowers ~~within three Business Days after all Events of Default have been cured~~ from the Lender that accepted such Bankers’ Acceptance or ~~waived~~purchased such BA Equivalent Note.

Appears in 1 contract

Samples: Credit Agreement (Strategic Storage Trust VI, Inc.)

Bankers’ Acceptances. ~~2.5.1 Subject to the terms and conditions of this Agreement, any~~ (a) The Borrower may ~~request a Borrowing by presenting drafts~~ issue Bankers’ Acceptances denominated in Canadian Dollars for acceptance and purchase ~~as B/As~~ by the ~~Lender. Notwithstanding any other provision of this Agreement, to the extent the Lender is unable to accept drafts, the Lender may make an advance to the Borrower~~ Global Revolving Lenders in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). The principal amount of a B/A Equivalent Loan shall be equal to the face amount of the applicable draft that would otherwise be issued to the Lender in connection therewith, and accordance with the provisions of Section 2.01, Section 2.03 and this ~~Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in~~ Section ~~2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans~~2.23. ~~2.5.2~~ (b) Each Bankers’ Acceptance shall have a Contract Period of approximately 30, 60 or 90 days or such other terms as available. No Contract Period ~~with respect to a B/A to be accepted and purchased under the Credit Facility~~ shall extend beyond the Revolving Credit Maturity Date. If such Contract Period would otherwise end on a day that is not a Business Day, such Contract Period shall end on the next preceding day that is a Business Day. ~~2.5.3~~ (c) On each Borrowing date on which Bankers’ Acceptances are to be accepted, the Administrative Agent shall advise the Borrower as to the Administrative Agent’s determination of the applicable Discount Rate for the Bankers’ Acceptances which any of the Global Revolving Lenders have agreed to purchase. (d) Each Global Revolving Lender agrees to purchase a Bankers’ Acceptance accepted by it. The Borrower shall sell, and such Global Revolving Lender shall purchase, the Bankers’ Acceptance at the applicable Discount Rate. Such Global Revolving Lender shall provide to the Canadian Funding Office the Discount Proceeds less the Acceptance Fee payable by the Borrower with respect to such Bankers’ Acceptance. Such proceeds will then be made available to the Borrower by the Administrative Agent crediting an account as directed by the Borrower with the aggregate of the amounts made available to the Administrative Agent by such Global Revolving Lenders and in like funds as received by the Administrative Agent. (e) Each Global Revolving Lender may from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances accepted and purchased by it. (f) To facilitate ~~availment~~ Borrowings denominated in Canadian Dollars under the Global Revolving Facility to the Borrower by way of B/~~A Borrowings (other than B/A Equivalent Loans)~~As, ~~each~~ the Borrower hereby appoints ~~the~~ each Global Revolving Lender as its attorney to sign and endorse on its ~~behalf (in accordance with a Borrowing Request relating to a B/A Borrowing)~~behalf, in handwriting or by facsimile or mechanical signature as and when deemed necessary by ~~the~~ such Global Revolving Lender, blank forms of B/As in reasonably acceptable to the ~~form requested by the Lender~~Borrower. In this respect, it is ~~the Borrowers’~~ each Global Revolving Lender’s responsibility to ~~furnish the Lender with~~ maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. ~~Each~~ The Borrower recognizes and agrees that all B/As required to be accepted and purchased by any Global Revolving Lender and which are signed and/or endorsed on its behalf by ~~the~~ a Global Revolving Lender ~~on behalf of such Borrower~~ shall bind ~~such~~ the Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of ~~such~~ the Borrower. ~~The~~ Each Global Revolving Lender is hereby authorized ~~(in accordance with a Borrowing Request relating to a B/A Borrowing)~~ to issue such B/As endorsed in blank in such face amounts as may be determined by ~~the~~ such Global Revolving Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by ~~the~~ such Global Revolving Lender. ~~The~~ No Global Revolving Lender shall ~~not~~ be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except ~~for~~ the gross negligence or ~~wilful~~ willful misconduct of ~~the~~ such Global Revolving Lender or its officers, employees, agents or representatives. ~~The~~ On request by the Borrower, each Global Revolving Lender shall cancel all forms of B/As which have been pre-signed or pre-endorsed by or on behalf of the Borrower and which are held by such Global Revolving Lender and have not yet been issued in accordance herewith. Each Global Revolving Lender shall maintain a record with respect to B/As ~~(a) received~~ held by it in blank hereunder, ~~(b)~~ voided by it for any reason, ~~(c) accepted or~~ accepted and purchased by it hereunder, and ~~(d)~~ cancelled at their respective maturities. ~~On request by or on behalf of any~~ Each Global Revolving Lender agrees to provide such records to the Borrower at the Borrower~~, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held~~ ’s expense upon request. (g) Drafts drawn by the ~~Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a~~ Borrower to be accepted as ~~B/As hereunder~~ Bankers’ Acceptances shall be signed ~~as set forth in this~~ by a duly authorized officer or officers of the Borrower or by its attorneys, including attorneys appointed pursuant to Section ~~2.5~~2.21(f) above. Notwithstanding that any ~~person~~ Person whose signature appears on any ~~B/A~~ Bankers’ Acceptance may no longer be an authorized signatory for the ~~Lender or a Borrower~~ Borrower, as applicable, at the ~~date~~ time of issuance of a ~~B/A~~Bankers’ Acceptance, ~~such~~ that signature shall nevertheless be valid and sufficient for all purposes as if ~~such~~ the authority had remained in force at the time of ~~such~~ issuance and any ~~such B/A~~ Bankers’ Acceptance so signed shall be binding on the Borrower. (h) The Administrative Agent, promptly following receipt of a ~~Borrower who requested~~ notice of Borrowing, continuation or conversion by way of Bankers’ Acceptances, shall advise the applicable Global Revolving Lenders of the notice and shall advise each such ~~B/A. 2.5.5 In~~ Global Revolving Lender of the ~~case~~ face amount of ~~B/A Borrowings~~Bankers’ Acceptances to be accepted by it and the applicable Contract Period (which shall be identical for all Global Revolving Lenders). The aggregate face amount of Bankers’ Acceptances to be accepted by a Global Revolving Lender shall be determined by the Administrative Agent by reference to such Global Revolving Lender’s Applicable Percentage of the issue of Bankers’ Acceptances, except that, if the face amount of a Bankers’ Acceptance which would otherwise be accepted by a Global Revolving Lender would not be CAD$100,000, or a whole multiple thereof, the face amount ~~of each B/A to~~ shall be ~~accepted~~ increased or reduced by the ~~Lender shall be~~ Administrative Agent in ~~a minimum aggregate amount of Cdn$500,000 and shall be a~~ its sole discretion to CAD$l00,000, or the nearest whole multiple of ~~Cdn$50,000~~that amount, as appropriate. ~~2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the~~ (i) The Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by the Borrower to the Lender in respect of each B/A accepted by the Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid to the Lender at the time of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it. 2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such B/As on the last day of the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As shall be deemed to have been converted on the last day of the Contract Period into a Canadian Prime Loan in an amount equal to the face amount of such B/As and the Borrower shall be deemed to have irrevocably requested such conversion without the execution of a Borrowing Request. 2.5.9 The Borrowers waive waives presentment for payment and any other ~~defence~~ defense to payment of any amounts due to ~~the~~ a Global Revolving Lender in respect of a ~~B/A~~ Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason of ~~such B/A~~ the Bankers’ Acceptance being held, at the maturity thereof, by ~~the~~ such Global Revolving Lender in its own right~~, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder~~. On the ~~last day of the Contract Period~~ specified maturity date of a B/A, or ~~such earlier~~ the date ~~as may be required or permitted pursuant to the provisions~~ of any prepayment thereof in accordance with this Agreement, if earlier, the Borrower ~~who requested such B/A~~ shall pay ~~the~~ to such Global Revolving Lender that has accepted ~~and purchased~~ such B/A the full face amount of such B/A ~~and~~(or shall make provision for payment by way of conversion or continuation in accordance with Section 2.07) in full and absolute satisfaction of its obligations with respect to such B/A, and after such payment, the ~~Borrowers~~ Borrower shall have no further liability in respect of such B/A (except to the extent that any such payment is rescinded or reclaimed by operation of law or otherwise) and ~~the~~ such Global Revolving Lender shall be entitled to all benefits of, and will make and otherwise be responsible for all payments due to the redeeming holder or any third parties under, such B/A. ~~2.5.10 If any Event~~ (j) Whenever the Borrower requests a borrowing by way of ~~Default shall occur and be continuing~~Bankers’ Acceptances, ~~the Borrowers shall deposit in an interest bearing account with the Lender~~each Non BA Lender shall, in lieu of accepting and purchasing any B/As, make a Loan (a “BA Equivalent Loan”) to the ~~name~~ Borrower in the amount and for the same term as each Draft which such Lender would otherwise have been required to accept and purchase hereunder. Each such Lender will provide to the Administrative Agent the amount of Discount Proceeds of such BA Equivalent Loan for the account of the ~~Lender~~Borrower in the same manner as such Lender would have provided the Discount Proceeds in respect of the Draft which such Lender would otherwise have been required to accept and purchase hereunder. Each such BA Equivalent Loan will bear interest at the same rate that would result if such Lender had accepted (and been paid an acceptance fee) and purchased (on a discounted basis) a B/A for the relevant Contract Period (it being the intention of the parties that each such BA Equivalent Loan shall have the same economic consequences for the relevant Lenders and the Borrower as the B/A that such BA Equivalent Loan replaces). All such interest shall be paid in advance on the date such BA Equivalent Loan is made, an and will be deducted from the principal amount of such BA Equivalent Loan in ~~cash equal to~~ the same manner in which the discounted portion of a B/A would be deducted from the face amount of the B/A. Subject to the repayment requirements of this Agreement, on the last day of the relevant Contract Period for such BA Equivalent Loan, the Borrower shall be entitled to convert each such BA Equivalent Loan into another type of Loan, or to roll over each such BA Equivalent Loan into another BA Equivalent Loan, all in accordance with the applicable provisions of this Agreement. Each Non BA Lender may, at its discretion, request in writing to the Administrative Agent and the Borrower that BA Equivalent Loans made by it shall be evidenced by Discount Notes. (k) For greater certainty, all provisions of this Agreement that are applicable to B/As ~~then outstanding. Such deposit~~ shall also be ~~held by the Lender as collateral for the payment~~ applicable, mutatis mutandis, to BA Equivalent Loans, and ~~performance~~ notwithstanding any other provision of ~~the obligations of the Borrowers under~~ this Agreement~~. The Lender shall have exclusive dominion and control~~, ~~including the exclusive right~~ all references to principal amounts or any repayment or prepayment of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender any Loans that are applicable to ~~reimburse the Lender for payments made under~~ B/As ~~for which it has not been reimbursed and,~~ or BA Drawings shall be deemed to refer to the ~~extent not so applied, if~~ full face amount thereof in the ~~maturity~~ case of B/As and to the principal amount of any portion thereof consisting of BA Equivalent Loans. As set out in the definition of “Bankers’ Acceptances,” that term includes Discount Notes and all terms of this Agreement applicable to Bankers’ Acceptances (including the provisions of Section 2.23(f) relating to their execution by the Global Revolving Lenders under power of attorney) shall apply equally to Discount Notes evidencing BA Equivalent Loans with such changes as may in the context be necessary. For greater certainty: (i) the term of a Discount Note shall be the same as the Contract Period for Bankers’ Acceptances accepted and purchased on the same Borrowing date in respect of the ~~Loans has been accelerated~~same borrowing; (ii) an acceptance fee will be payable in respect of a Discount Note and shall be calculated at the same rate and in the same manner as the Acceptance Fee in respect of a Bankers’ Acceptance; and (iii) the Discount Rate applicable to a Discount Note shall be the Discount Rate applicable to Bankers’ Acceptances accepted by a Global Revolving Lender that is not a Schedule I Lender in accordance with the definition of “Discount Rate” on the same Borrowing date or date of continuation or conversion, ~~be applied to satisfy other obligations~~ as the case may be, in respect of the ~~Borrowers~~ same borrowing for the relevant Contract Period. (l) At the option of the Borrower and any Global Revolving Lender, Bankers’ Acceptances under this ~~Agreement~~Agreement to be accepted by such Global Revolving Lender may be issued in the form of depository bills for deposit with The Canadian Depository for Securities Limited pursuant to the Depository Bills and Notes Act (Canada). If All depository bills so issued shall be governed by the ~~Borrowers are required~~ provisions of this Section 2.23. (m) Upon acceptance of a Bankers’ Acceptance by a Global Revolving Lender, the Borrower shall pay to ~~provide an~~ the Administrative Agent on behalf of such Global Revolving Lender a fee (the “Acceptance Fee”) calculated on the face amount of ~~cash collateral hereunder as~~ the Bankers’ Acceptance at a ~~result~~ rate per annum equal to the Applicable Rate on the basis of the ~~occurrence~~ number of ~~an Event of Default,~~ days in the Contract Period for such ~~amount (~~Bankers’ Acceptance. Any adjustment to the ~~extent not applied~~ Acceptance Fee (including any adjustment as ~~aforesaid~~necessary to reflect the operation of Section 2.12(d)) shall be ~~returned~~ computed based on the number of days remaining in the Contract Period of such Bankers’ Acceptances from and including the effective date of any change in the Applicable Rate. Any increase in such Acceptance Fee shall be paid by the Borrower to the ~~Borrowers within three Business Days after all Events~~ Administrative Agent on behalf of ~~Default have been cured or waived~~the Global Revolving Lenders on the last day of the Contract Period of the relevant Bankers’ Acceptance. Any decrease in such Acceptance Fee shall be paid by each Global Revolving Lender to the Borrower, through the Administrative Agent, on the last day of the Contract Period of the relevant Bankers’ Acceptance.

Appears in 1 contract

Samples: Restatement Agreement (Delphi Automotive PLC)

Bankers’ Acceptances. ~~2.5.1 Subject to~~ If: (i) the ~~terms~~ Agent, acting reasonably, makes a determination, which determination shall be conclusive and ~~conditions of this Agreement~~binding upon the Borrower, ~~any Borrower may request a Borrowing by presenting drafts~~ and notifies the Borrower, that there no longer exists an active market for ~~acceptance and purchase as B/As~~ bankers’ acceptances accepted by the ~~Lender. Notwithstanding any other provision~~ Lenders; or (ii) the Agent is advised by Lenders holding at least 35% of ~~this Agreement~~the Total Commitment and being not less than 35% in number of Lenders by written notice (each, a “Lender BA Suspension Notice”) that such Lenders have determined, acting reasonably, that the Discount Rate will not or does not accurately reflect the cost of funds of such Lenders or the discount rate which would be applicable to a sale of Bankers’ Acceptances accepted by such Lenders in the ~~extent~~ market; then: (iii) the ~~Lender is unable to accept drafts, the Lender may make an advance to~~ right of the Borrower ~~in lieu of purchasing a draft that it would otherwise be required~~ to ~~purchase hereunder (a “B/A~~ request Bankers’ Acceptances or BA Equivalent ~~Loan”). The principal amount of a B/A Equivalent Loan~~ Advances from any Lender shall be ~~equal to~~ suspended until the ~~face amount of~~ Agent determines, acting reasonably, that the ~~applicable draft that would otherwise be issued to the Lender in connection therewith~~circumstances causing such suspension no longer exist, and the ~~provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including~~ Agent so notifies the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by the Lender. The Lender shall not be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and ~~which are held~~ the Lenders; (iv) any outstanding Borrowing Notice requesting an Accommodation by ~~the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts~~ way of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by the Borrower to the Lender in respect of each B/A accepted by the Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid to the Lender at the time of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it. 2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such B/As on the last day of the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As Bankers’ Acceptances shall be deemed to ~~have been converted on the last day of the Contract Period into~~ be a ~~Canadian~~ Borrowing Notice requesting a Prime Loan in an the amount ~~equal to~~ specified in the ~~face amount~~ original Borrowing Notice; (v) any outstanding Conversion Notice requesting a Conversion of ~~such B/As and the Borrower~~ a U.S. Base Rate Loan or Libor Loan into a Bankers’ Acceptance shall be deemed to ~~have irrevocably requested~~ be a Conversion Notice requesting a Conversion of such ~~conversion without the execution~~ Loan into a Prime Loan; and (vi) any outstanding Rollover Notice requesting a Rollover of a ~~Borrowing Request. 2.5.9~~ Bankers’ Acceptance shall be deemed to be a Conversion Notice requesting a Conversion of such Bankers’ Acceptances into a Prime Loan. The ~~Borrowers waive presentment for payment~~ Agent shall promptly notify the Borrower and ~~any other defence to payment~~ the Lenders of any ~~amounts due~~ suspension of the Borrower’s right to request Bankers’ Acceptances and of any termination of any such suspension. A Lender BA Suspension Notice shall be effective upon receipt of the same by the Agent if received prior to 2 p.m. (Toronto time) on a Business Day and if not, then on the next following Business Day, except in connection with a Borrowing Notice, Conversion Notice or Rollover Notice previously received by the Agent, in which case the applicable Lender BA Suspension Notice shall only be effective with respect to such previously received Borrowing Notice, Conversion Notice or Rollover Notice if received by the Agent prior to 2 p.m. (Toronto time) two (2) Business Days prior to the ~~Lender in respect of a B/A accepted and purchased by it pursuant~~ proposed Drawdown Date, Conversion Date or Rollover Date (as applicable) applicable to ~~this Agreement which might exist solely by reason of~~ such ~~B/A being held~~previously received Borrowing Notice, ~~at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender~~Conversion Notice or Rollover Notice, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, the Borrowers shall have no further liability in respect of such B/A and the Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waivedapplicable.

Appears in 1 contract

Samples: Credit Agreement (Precision Diversified Oilfield Services Corp.)

Bankers’ Acceptances. 2.5.1 Subject to the terms and conditions of this Agreement, any Borrower may request a Borrowing by presenting drafts for acceptance and purchase as B/As by the Lender. Notwithstanding any other provision of this Agreement, to the extent If: (i) the Lender ~~is unable to accept drafts~~(acting reasonably and in good faith) makes a determination, the Lender may make an advance to the Borrower in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). The principal amount of a B/A Equivalent Loan which determination shall be ~~equal to~~ conclusive and binding upon the ~~face amount of the applicable draft that would otherwise be issued to the Lender in connection therewith~~Borrower, and notifies the ~~provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided~~ Borrower, that there no longer exists an active market for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be bankers' acceptances accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the Lender; ~~provided~~ or (ii) the Lender has determined (acting reasonably) that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by the Lender. The Lender shall not be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Reference Discount Rate ~~and shall pay~~ will not or does not accurately reflect the ~~Discount Proceeds~~ cost of funds or the discount rate which would be applicable to ~~the Borrower in respect thereof. An Acceptance Fee shall be payable by the Borrower to the Lender in respect~~ a sale of ~~each B/A~~ Bankers' Acceptances accepted ~~by the Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid to the Lender at the time of acceptance of such B/A~~ by the Lender in the ~~event~~ market; then: (A) the right of the Borrower to request Bankers' Acceptances from the Lender shall be suspended until the Lender (acting reasonably and in good faith) determines that the ~~Borrower does not request~~ circumstances causing such suspension no longer exist, and so notifies the ~~Lender to purchase the accepted~~ Borrower; (B~~/As. 2.5.7 The Lender may at~~ ) any ~~time and from time to time hold, sell, rediscount or otherwise dispose~~ outstanding Notice of ~~any or all B/As accepted and purchased~~ Borrowing requesting a Borrowing by ~~it. 2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day~~ way of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such B/As on the last day of the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As Bankers' Acceptances shall be deemed to ~~have been converted on~~ be a Notice of Borrowing requesting a Prime Rate Loan in the ~~last day~~ amount specified in the original Notice of ~~the Contract Period~~ Borrowing; (C) any outstanding Conversion Notice requesting a Conversion of a U.S. Base Rate Loan or Libor Loan into a ~~Canadian Prime Loan in an amount equal to the face amount of such B/As and the Borrower~~ Bankers' Acceptance shall be deemed to ~~have irrevocably requested~~ be a Conversion Notice requesting a Conversion of such ~~conversion without the execution~~ U.S. Base Rate Loan or Libor Loan into a Prime Rate Loan; and (D) any outstanding Rollover Notice requesting a Rollover of a ~~Borrowing Request. 2.5.9 The Borrowers waive presentment for payment and any other defence~~ Bankers' Acceptance shall be deemed to ~~payment of any amounts due to the Lender in respect of~~ be a ~~B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason~~ Conversion Notice requesting a Conversion of such B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of Bankers' Acceptances into a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, the Borrowers shall have no further liability in respect of such B/A and the Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance of the obligations of the Borrowers under this AgreementPrime Rate Loan. The Lender shall ~~have exclusive dominion and control, including~~ promptly notify the ~~exclusive right~~ Borrower of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity any suspension of the ~~Loans has been accelerated, be applied~~ Borrower's right to ~~satisfy other obligations~~ request Bankers' Acceptances and of ~~the Borrowers under this Agreement. If the Borrowers are required to provide an amount~~ any termination of ~~cash collateral hereunder as a result of the occurrence of an Event of Default,~~ any such ~~amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waived~~suspension.

Appears in 1 contract

Samples: Credit Agreement (High Tide Inc.)

Bankers’ Acceptances. ~~2.5.1 Subject to the terms and conditions of this Agreement, any Borrower~~ (a) The Borrowers may ~~request a Borrowing by presenting drafts~~ issue Bankers’ Acceptances denominated in Canadian Dollars for acceptance and purchase ~~as B/As~~ by the ~~Lender. Notwithstanding any other provision of this Agreement, to the extent the Lender is unable to accept drafts, the Lender may make an advance to the Borrower~~ Global Revolving Lenders in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). The principal amount of a B/A Equivalent Loan shall be equal to the face amount of the applicable draft that would otherwise be issued to the Lender in connection therewith, and accordance with the provisions of Section 2.01, Section 2.03 and this ~~Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in~~ Section ~~2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans~~2.23. ~~2.5.2~~ (b) Each Bankers’ Acceptance shall have a Contract Period of approximately 30, 60 or 90 days or such other terms as available. No Contract Period ~~with respect to a B/A to be accepted and purchased under the Credit Facility~~ shall extend beyond the Revolving Credit Maturity Date. If such Contract Period would otherwise end on a day that is not a Business Day, such Contract Period shall end on the next preceding day that is a Business Day. ~~2.5.3~~ (c) On each Borrowing date on which Bankers’ Acceptances are to be accepted, the Administrative Agent shall advise the Borrower Agent as to the Administrative Agent’s determination of the applicable Discount Rate for the Bankers’ Acceptances which any of the Global Revolving Lenders have agreed to purchase. (d) Each Global Revolving Lender agrees to purchase a Bankers’ Acceptance accepted by it. The applicable Borrower shall sell, and such Global Revolving Lender shall purchase, the Bankers’ Acceptance at the applicable Discount Rate. Such Global Revolving Lender shall provide to the Canadian Funding Office the Discount Proceeds less the Acceptance Fee payable by the applicable Borrower with respect to such Bankers’ Acceptance. Such proceeds will then be made available to the applicable Borrower by the Administrative Agent crediting an account as directed by such Borrower with the aggregate of the amounts made available to the Administrative Agent by such Global Revolving Lenders and in like funds as received by the Administrative Agent. (e) Each Global Revolving Lender may from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances accepted and purchased by it. (f) To facilitate ~~availment~~ Borrowings denominated in Canadian Dollars under the Global Revolving Facility to the Borrowers by way of B/~~A Borrowings (other than B/A Equivalent Loans)~~As, the Borrowers hereby appoint each ~~Borrower hereby appoints the~~ Global Revolving Lender as its attorney to sign and endorse on its ~~behalf (in accordance with a Borrowing Request relating to a B/A Borrowing)~~behalf, in handwriting or by facsimile or mechanical signature as and when deemed necessary by ~~the~~ such Global Revolving Lender, blank forms of B/As in reasonably acceptable to the ~~form requested by the Lender~~Borrower Agent. In this respect, it is ~~the Borrowers’~~ each Global Revolving Lender’s responsibility to ~~furnish the Lender with~~ maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As required to be accepted and purchased by any Global Revolving Lender and which are signed and/or endorsed on its behalf by ~~the~~ a Global Revolving Lender ~~on behalf of such Borrower~~ shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. ~~The~~ Each Global Revolving Lender is hereby authorized ~~(in accordance with a Borrowing Request relating to a B/A Borrowing)~~ to issue such B/As endorsed in blank in such face amounts as may be determined by ~~the~~ such Global Revolving Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by ~~the~~ such Global Revolving Lender. ~~The~~ No Global Revolving Lender shall ~~not~~ be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except ~~for~~ the gross negligence or ~~wilful~~ willful misconduct of ~~the~~ such Global Revolving Lender or its officers, employees, agents or representatives. ~~The~~ On request by the Borrower Agent, each Global Revolving Lender shall cancel all forms of B/As which have been pre-signed or pre-endorsed by or on behalf of such Borrower and which are held by such Global Revolving Lender and have not yet been issued in accordance herewith. Each Global Revolving Lender shall maintain a record with respect to B/As ~~(a) received~~ held by it in blank hereunder, ~~(b)~~ voided by it for any reason, ~~(c) accepted or~~ accepted and purchased by it hereunder, and ~~(d)~~ cancelled at their respective maturities. ~~On request by or on behalf of any Borrower,~~ Each Global Revolving Lender agrees to provide such records to the ~~Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such~~ Borrower ~~and which are held by~~ Agent at the ~~Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice~~Borrowers’ expense upon request. ~~2.5.4~~ (g) Drafts of drawn by a Borrower to be accepted as ~~B/As hereunder~~ Bankers’ Acceptances shall be signed ~~as set forth in this~~ by a duly authorized officer or officers of such Borrower or by its attorneys, including attorneys appointed pursuant to Section ~~2.5~~2.21(f) above. Notwithstanding that any ~~person~~ Person whose signature appears on any ~~B/A~~ Bankers’ Acceptance may no longer be an authorized signatory for ~~the Lender or~~ a ~~Borrower~~ Borrower, as applicable, at the ~~date~~ time of issuance of a ~~B/A~~Bankers’ Acceptance, ~~such~~ that signature shall nevertheless be valid and sufficient for all purposes as if ~~such~~ the authority had remained in force at the time of ~~such~~ issuance and any ~~such B/A~~ Bankers’ Acceptance so signed shall be binding on such Borrower. (h) The Administrative Agent, promptly following receipt of a ~~Borrower who requested~~ notice of Borrowing, continuation or conversion by way of Bankers’ Acceptances, shall advise the applicable Global Revolving Lenders of the notice and shall advise each such ~~B/A. 2.5.5 In~~ Global Revolving Lender of the ~~case~~ face amount of ~~B/A Borrowings~~Bankers’ Acceptances to be accepted by it and the applicable Contract Period (which shall be identical for all Global Revolving Lenders). The aggregate face amount of Bankers’ Acceptances to be accepted by a Global Revolving Lender shall be determined by the Administrative Agent by reference to such Global Revolving Lender’s Applicable Percentage of the issue of Bankers’ Acceptances, except that, if the face amount of a Bankers’ Acceptance which would otherwise be accepted by a Global Revolving Lender would not be CAD$100,000, or a whole multiple thereof, the face amount ~~of each B/A to~~ shall be ~~accepted~~ increased or reduced by the ~~Lender shall be~~ Administrative Agent in ~~a minimum aggregate amount of Cdn$500,000 and shall be a~~ its sole discretion to CAD$l00,000, or the nearest whole multiple of ~~Cdn$50,000~~that amount, as appropriate. ~~2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the~~ (i) Each Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by the Borrower to the Lender in respect of each B/A accepted by the Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid to the Lender at the time of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it. 2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such B/As on the last day of the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As shall be deemed to have been converted on the last day of the Contract Period into a Canadian Prime Loan in an amount equal to the face amount of such B/As and the Borrower shall be deemed to have irrevocably requested such conversion without the execution of a Borrowing Request. 2.5.9 The Borrowers waive waives presentment for payment and any other ~~defence~~ defense to payment of any amounts due to ~~the~~ a Global Revolving Lender in respect of a ~~B/A~~ Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason of ~~such B/A~~ the Bankers’ Acceptance being held, at the maturity thereof, by ~~the~~ such Global Revolving Lender in its own right~~, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder~~. On the ~~last day of the Contract Period~~ specified maturity date of a B/A, or ~~such earlier~~ the date ~~as may be required or permitted pursuant to the provisions~~ of any prepayment thereof in accordance with this Agreement, if earlier, the applicable Borrower ~~who requested such B/A~~ shall pay ~~the~~ to such Global Revolving Lender that has accepted ~~and purchased~~ such B/A the full face amount of such B/A ~~and~~(or shall make provision for payment by way of conversion or continuation in accordance with Section 2.07) in full and absolute satisfaction of its obligations with respect to such B/A, and after such payment, the ~~Borrowers~~ applicable Borrower shall have no further liability in respect of such B/A (except to the extent that any such payment is rescinded or reclaimed by operation of law or otherwise) and ~~the~~ such Global Revolving Lender shall be entitled to all benefits of, and will make and otherwise be responsible for all payments due to the redeeming holder or any third parties under, such B/A. ~~2.5.10 If any Event~~ (j) Whenever a Borrower requests a borrowing by way of ~~Default shall occur and be continuing~~Bankers’ Acceptances, ~~the Borrowers shall deposit in an interest bearing account with the Lender~~each Non BA Lender shall, in lieu of accepting and purchasing any B/As, make a Loan (a “BA Equivalent Loan”) to such Borrower in the ~~name~~ amount and for the same term as each Draft which such Lender would otherwise have been required to accept and purchase hereunder. Each such Lender will provide to the Administrative Agent the amount of Discount Proceeds of such BA Equivalent Loan for the account of the ~~Lender~~applicable Borrower in the same manner as such Lender would have provided the Discount Proceeds in respect of the Draft which such Lender would otherwise have been required to accept and purchase hereunder. Each such BA Equivalent Loan will bear interest at the same rate that would result if such Lender had accepted (and been paid an acceptance fee) and purchased (on a discounted basis) a B/A for the relevant Contract Period (it being the intention of the parties that each such BA Equivalent Loan shall have the same economic consequences for the relevant Lenders and the applicable Borrower as the B/A that such BA Equivalent Loan replaces). All such interest shall be paid in advance on the date such BA Equivalent Loan is made, an and will be deducted from the principal amount of such BA Equivalent Loan in ~~cash equal to~~ the same manner in which the discounted portion of a B/A would be deducted from the face amount of the B/A. Subject to the repayment requirements of this Agreement, on the last day of the relevant Contract Period for such BA Equivalent Loan, the applicable Borrower shall be entitled to convert each such BA Equivalent Loan into another type of Loan, or to roll over each such BA Equivalent Loan into another BA Equivalent Loan, all in accordance with the applicable provisions of this Agreement. Each Non BA Lender may, at its discretion, request in writing to the Administrative Agent and the applicable Borrower that BA Equivalent Loans made by it shall be evidenced by Discount Notes. (k) For greater certainty, all provisions of this Agreement that are applicable to B/As ~~then outstanding. Such deposit~~ shall also be ~~held by the Lender as collateral for the payment~~ applicable, mutatis mutandis, to BA Equivalent Loans, and ~~performance~~ notwithstanding any other provision of ~~the obligations of the Borrowers under~~ this Agreement~~. The Lender shall have exclusive dominion and control~~, ~~including the exclusive right~~ all references to principal amounts or any repayment or prepayment of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender any Loans that are applicable to ~~reimburse the Lender for payments made under~~ B/As ~~for which it has not been reimbursed and,~~ or BA Drawings shall be deemed to refer to the ~~extent not so applied, if~~ full face amount thereof in the ~~maturity~~ case of B/As and to the principal amount of any portion thereof consisting of BA Equivalent Loans. As set out in the definition of “Bankers’ Acceptances,” that term includes Discount Notes and all terms of this Agreement applicable to Bankers’ Acceptances (including the provisions of Section 2.23(f) relating to their execution by the Global Revolving Lenders under power of attorney) shall apply equally to Discount Notes evidencing BA Equivalent Loans with such changes as may in the context be necessary. For greater certainty: (i) the term of a Discount Note shall be the same as the Contract Period for Bankers’ Acceptances accepted and purchased on the same Borrowing date in respect of the ~~Loans has been accelerated~~same borrowing; (ii) an acceptance fee will be payable in respect of a Discount Note and shall be calculated at the same rate and in the same manner as the Acceptance Fee in respect of a Bankers’ Acceptance; and (iii) the Discount Rate applicable to a Discount Note shall be the Discount Rate applicable to Bankers’ Acceptances accepted by a Global Revolving Lender that is not a Schedule I Lender in accordance with the definition of “Discount Rate” on the same Borrowing date or date of continuation or conversion, ~~be applied to satisfy other obligations~~ as the case may be, in respect of the ~~Borrowers~~ same borrowing for the relevant Contract Period. (l) At the option of the applicable Borrower and any Global Revolving Lender, Bankers’ Acceptances under this ~~Agreement~~Agreement to be accepted by such Global Revolving Lender may be issued in the form of depository bills for deposit with The Canadian Depository for Securities Limited pursuant to the Depository Bills and Notes Act (Canada). If All depository bills so issued shall be governed by the ~~Borrowers are required~~ provisions of this Section 2.23. (m) Upon acceptance of a Bankers’ Acceptance by a Global Revolving Lender, the applicable Borrower shall pay to ~~provide an~~ the Administrative Agent on behalf of such Global Revolving Lender a fee (the “Acceptance Fee”) calculated on the face amount of ~~cash collateral hereunder as~~ the Bankers’ Acceptance at a ~~result~~ rate per annum equal to the Applicable Rate on the basis of the ~~occurrence~~ number of ~~an Event of Default,~~ days in the Contract Period for such ~~amount (~~Bankers’ Acceptance. Any adjustment to the ~~extent not applied~~ Acceptance Fee (including any adjustment as ~~aforesaid~~necessary to reflect the operation of Section 2.12(d)) shall be ~~returned~~ computed based on the number of days remaining in the Contract Period of such Bankers’ Acceptances from and including the effective date of any change in the Applicable Rate. Any increase in such Acceptance Fee shall be paid by the applicable Borrower to the ~~Borrowers within three Business Days after all Events~~ Administrative Agent on behalf of ~~Default have been cured or waived~~the Global Revolving Lenders on the last day of the Contract Period of the relevant Bankers’ Acceptance. Any decrease in such Acceptance Fee shall be paid by each Global Revolving Lender to the applicable Borrower, through the Administrative Agent, on the last day of the Contract Period of the relevant Bankers’ Acceptance.

Appears in 1 contract

Samples: Restatement Agreement (Delphi Automotive PLC)

Bankers’ Acceptances. ~~2.5.1 Subject~~ The following provisions shall apply to Advances obtained by way of the issuance of Bankers' Acceptances: 7.5.1. all drafts required to be accepted by a Lender pursuant to this Agreement shall be in the form requested by such Lender, and, shall be executed and drawn by such Lender on behalf of the Relevant Borrower pursuant to the ~~terms and conditions~~ power of ~~this Agreement,~~ attorney contained in Section 7.5.3; 7.5.2. any Borrowing Notice requesting an issue of Bankers' Acceptances shall include instructions from the Relevant Borrower may request a Borrowing by presenting drafts for acceptance and purchase as B/As by the Lender. Notwithstanding any other provision of this Agreement, to the extent the Lender is unable to accept drafts, the Lender may make an advance to the Borrower in lieu of purchasing a draft stating that it ~~would otherwise be required~~ wishes to ~~purchase hereunder (a “B/A Equivalent Loan”). The principal amount of a B/A Equivalent Loan shall be equal to~~ have drafts accepted as Bankers' Acceptances under this Agreement and stating the aggregate face amount of ~~the applicable draft that would otherwise be issued to the Lender in connection therewith,~~ and the ~~provisions of this Agreement shall apply~~ term (being, subject to availability, one, two, three or six months) applicable to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender)drafts. The ~~Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period~~ Relevant Borrower may notify the Agent by telephone of its instructions with respect to Bankers' Acceptances, provided it shall immediately thereafter confirm its telephone instructions given pursuant to this paragraph by a ~~B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date.~~Borrowing Notice; ~~2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans),~~ 7.5.3. each Borrower ~~hereby~~ authorizes each Lender, and for this purpose appoints each Lender the ~~Lender as its~~ lawful attorney of such Borrower, to complete, sign and endorse drafts on its behalf (in ~~accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting~~ handwritten or by facsimile or mechanical signature in accordance with each Borrowing Notice and, once so completed, signed and endorsed, and following acceptance of them as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance a Bankers' Acceptance under this Agreement, then purchase, discount or negotiate such Bankers' Acceptances in accordance with the provisions of this Section 7.5. ~~Each Borrower recognizes~~ Drafts so completed, signed and ~~agrees that all B/As signed and/or~~ endorsed ~~by the Lender~~ and negotiated on behalf of ~~such~~ each Borrower shall bind such Borrower as ~~fully and effectually as~~ if ~~signed in the handwriting of and duly issued~~ so performed by ~~the proper signing officers~~ an authorized officer of such Borrower; 7.5.4. The Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by the Lender. The Lender shall not be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each ~~B/A~~ Bankers' Acceptance to be accepted by ~~the~~ a Lender ~~shall be in a minimum aggregate amount of Cdn$500,000 and~~ shall be a whole number multiple of ~~Cdn$50,000.~~Cdn. $100,000; ~~2.5.6 Upon acceptance~~ 7.5.5. the Agent shall have the discretion to restrict the term and the Maturity Date of an issue of Bankers' Acceptances. The Maturity Date of each issue of Bankers' Acceptances must be no later than the Due Date of the relevant Credit Facility. There shall not be more than ten (10) issues of Bankers' Acceptances maturing during any single calendar month under the Credit Facilities, unless the Agent otherwise agrees; 7.5.6. each Lender shall purchase each Bankers' Acceptance accepted by it at a ~~B/A by~~ discount to yield (excluding the Acceptance Fee) an interest rate per annum equal to such Lender, 's BA Reference Rate on each Acceptance Date of Bankers' Acceptances issued pursuant to this Agreement. The obligation of the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by the Relevant Borrower to pay to a Lender the ~~Lender in respect~~ face amount of each ~~B/A accepted~~ Bankers' Acceptance so purchased by it upon the ~~Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid to the Lender at the time of acceptance~~ maturity of such B/Bankers' Acceptance shall continue in full force and effect notwithstanding such purchase. A ~~by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As. 2.5.7 The~~ Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any ~~or all B/As accepted and~~ Bankers' Acceptance purchased by it. 2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such B/As on the last day of the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As shall be deemed to have been converted on the last day of the Contract Period into a Canadian Prime Loan in an amount equal to the face amount of such B/As and the Borrower shall be deemed to have irrevocably requested such conversion without the execution of a Borrowing Request. 2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due to the Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, the Borrowers shall have no further liability in respect of such B/A and the Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waived.;

Appears in 1 contract

Samples: Loan Agreement (Gerdau Usa Inc)

Bankers’ Acceptances. ~~2.5.1 Subject~~ (a) Notwithstanding anything to the contrary contained herein, any Local Fronting Lender may agree (in its sole discretion from time to time) to create bankers' acceptances under its Currency Sublimit by way of the acceptance and discount of Drafts (the "Acceptances") pursuant to this subsection 8.9; provided that no Local Fronting Lender shall have any obligation to create and/or discount Acceptances, regardless of any prior practice of doing so for the account of such Local Subsidiary. Any Acceptances created pursuant to this subsection 8.9 shall be denominated in the Denomination Currency for the relevant Local Fronting Lender (and not in Dollars), and shall be for such tenor and in such amount as may be mutually agreed upon by the relevant Fronting Lender and Local Subsidiary; provided that in no event shall any Acceptance mature after the date which is 30 days prior to the Termination Date. (b) Unless the relevant Local Subsidiary and Local Fronting Lender otherwise agree, the relevant Local Subsidiary shall give to the relevant Local Fronting Lender not less than two Business Days' prior written notice of its intent to borrow by way of Acceptances from any Local Fronting Lender which has agreed to accept and discount Drafts for the account of such Local Subsidiary, which notice shall be accompanied by (i) a Draft which has been completed, executed and delivered by a duly authorized officer of such Local Subsidiary and (ii) such other documents, instruments and certificates as such Local Fronting Lender reasonably may request; provided that, after giving effect to the creation of such Acceptance, the Local Outstandings owing to such Local Fronting Lender shall not exceed the amount equal to its Currency Sublimit then in effect. On the requested borrowing date, the relevant Fronting Lender will accept such Draft and discount such accepted Draft in accordance with the provisions of subsection 8.9(c). (c) Any Local Fronting Lender may, in its sole discretion, elect to discount Drafts of the relevant Local Subsidiary on the date upon which such Local Fronting Lender accepts such Drafts by discounting such Draft at the rate per annum equal to the Local Rate (which may be a different rate than the Local Rate then payable on account of Local Loans in such Denomination Currency) then in effect plus the Applicable Margin then in effect for Local Rate Loans; provided that, unless the relevant Local Fronting Lender and Local Subsidiary otherwise agree, such discount shall be calculated by, first, discounting the aggregate face amount of such Draft at the rate per annum equal to the Local Rate then in effect and, second, discounting the result thereof at the rate per annum equal to the Applicable Margin then in effect for Local Rate Loans. Promptly following such discounting (and, in any event, on the date thereof), such Local Fronting Lender shall make available to such Local Subsidiary the amount equal to the discounted face amount of such Draft in the manner in which such Local Fronting Lender makes available Local Loans pursuant to subsection 8.3(b). (d) Each Local Subsidiary hereby unconditionally agrees to pay to the relevant Local Fronting Lender the aggregate, undiscounted face amount of each Draft accepted by such Local Fronting Lender hereunder on the maturity date thereof (or on such earlier date upon which the obligations of such Local Subsidiary under this Agreement shall become or shall have been declared due and payable pursuant to the terms and conditions of this Agreement, any Borrower may request a Borrowing by presenting drafts for acceptance and purchase as B/As by the Lender. Notwithstanding any other provision of this Agreement, to the extent the Lender is unable to accept drafts, the Lender may make an advance to the Borrower in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). ~~The principal~~ Interest shall accrue on any amount of owing pursuant to this subsection 8.9(d) which is not paid when due (whether by scheduled maturity, mandatory prepayment, acceleration or otherwise) from the date such amount becomes due until paid in full at a ~~B/A Equivalent Loan shall be~~ fluctuating rate per annum equal to the ~~face amount of the applicable draft that~~ rate which would ~~otherwise~~ then be issued to the Lender in connection therewith, and the provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by the Lender. The Lender shall not be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears payable on any ~~B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid~~ overdue Local Rate Loans and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by such Local Subsidiary upon demand by such Local Fronting Lender. (e) Each Multi-Currency Lender hereby unconditionally and irrevocably agrees to purchase undivided participating interests in the ~~Borrower~~ Acceptances created by each Local Fronting Lender in accordance with the provisions of subsection 8.4. (f) Notwithstanding anything to the ~~Lender in respect of each B/A accepted~~ contrary contained herein, the indefeasible prepayment by the ~~Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid~~ relevant Local Subsidiary to the relevant Local Fronting Lender ~~at the time~~ of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount all or ~~otherwise dispose~~ a portion of any or all B/As accepted and purchased by it. 2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such B/As on the last day of the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As outstanding Acceptance shall be deemed to ~~have been converted on~~ constitute a prepayment of such portion of such Acceptance for all purposes hereunder, regardless of whether the ~~last day~~ relevant Local Fronting Lender has distributed such amount to the holder of the Contract Period into a Canadian Prime Loan in an amount equal to the face amount of such B/As and the Borrower shall be deemed to have irrevocably requested such conversion without the execution of a Borrowing Requestunderlying Draft. 2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due to the Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, the Borrowers shall have no further liability in respect of such B/A and the Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waived.

Appears in 1 contract

Samples: Credit Agreement (Revlon Worldwide Parent Corp)

Bankers’ Acceptances. ~~2.5.1~~ (a) Bankers' Acceptances. Company may request, in accordance with the provisions of this Section 2.3, from time to time during the period from the Closing Date to but excluding the 30th day prior to the Revolving Commitment Termination Date or Tranche A Term Loan Maturity Date, as applicable, that the Lenders accept Bankers' Acceptances issued by Company or make BA Equivalent Advances to Company. Subject to the terms and conditions of this ~~Agreement~~Agreement and in reliance upon the representations and warranties of Company herein set forth, ~~any Borrower may request a Borrowing by presenting drafts for acceptance and purchase as B/As by the Lender. Notwithstanding any other provision of this Agreement~~such Lenders shall accept such Bankers' Acceptances, ~~to the extent the Lender is unable to accept drafts, the Lender may~~ or make ~~an advance to the Borrower~~ BA Equivalent Advances in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). The principal amount of a B/A Equivalent Loan shall be equal to the face amount of the applicable draft that would otherwise be issued to the Lender thereof, in ~~connection therewith, and~~ accordance with the provisions of this ~~Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in~~ Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the Lender2.3; provided that ~~the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted~~ Company shall not request that any Lender having a Term Loan Commitment accept such Bankers' Acceptances, or make BA Equivalent Advances (and ~~purchased by the Lender. The~~ no such Lender shall ~~not be liable for any damage~~do so), ~~loss or other claim arising by reason of any loss or improper use of any such instrument except for~~ except (i) on the ~~gross negligence or wilful misconduct~~ Closing Date to fund the advance of the Tranche A Term Loan Commitment, if so requested in the Funding Notice therefor, (ii) as Rollovers of existing Bankers' Acceptances or BA Equivalent Advances, (iii) as Conversions from Prime Rate Loans into Bankers' Acceptances or BA Equivalent Advances, in any case in Sections 2.3(a)(i), (ii) and (iii), involving no increase in borrowing under the Tranche A Term Loan Commitment. Company shall not request that any Revolving Lender or ~~its officers~~Tranche A Term Loan Lender accept such Bankers' Acceptances, ~~employees, agents~~ or ~~representatives. The~~ make BA Equivalent Advances (and no Revolving Lender or Tranche A Term Loan Lender shall ~~maintain~~ do so), if, after giving effect to such issuance a ~~record with respect to B/As~~ Bankers' Acceptance or BA Equivalent Advance would have a term ending later than the Revolving Commitment Termination Date or Tranche A Term Loan Maturity Date, as the case may be. Company shall not request that any Revolving Lender accept such Bankers' Acceptances, or make BA Equivalent Advances (~~a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted~~ and ~~purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the~~ no Revolving Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by the Borrower to the Lender in respect of each B/A accepted by the Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid to the Lender at the time of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it. 2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same daydo so), if after giving effect to such issuances the ~~Borrower intends to issue B/As on such last day~~ Total Utilization of Revolving Commitments would exceed the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such B/As on the last day of the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As shall be deemed to have been converted on the last day of the Contract Period into a Canadian Prime Loan in an amount equal to the face amount of such B/As and the Borrower shall be deemed to have irrevocably requested such conversion without the execution of a Borrowing RequestRevolving Commitment. 2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due to the Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, the Borrowers shall have no further liability in respect of such B/A and the Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waived.

Appears in 1 contract

Samples: Credit and Guaranty Agreement (MAAX Holding Co.)

Appears in 1 contract

Samples: Credit Agreement (Brookfield Business Partners L.P.)

Bankers’ Acceptances. ~~2.5.1 Subject to~~ (a) To facilitate the ~~terms and conditions of~~ procedures contemplated in this Agreement, any Borrower may request a Borrowing by presenting drafts for acceptance and purchase as B/As by the Lender. Notwithstanding any other provision of this Agreement, to the extent the Lender is unable to accept drafts, the Lender may make an advance to the Borrower ~~in lieu of purchasing a draft that it would otherwise be required~~ irrevocably appoints each Lender from time to ~~purchase hereunder (a “B/A Equivalent Loan”). The principal amount of a B/A Equivalent Loan shall be equal to~~ time as the ~~face amount~~ attorney-in-fact of the ~~applicable draft that would otherwise be issued~~ Borrower to execute, endorse and deliver on behalf of the Lender in connection therewith, and the provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower ~~hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing),~~ in handwriting or by facsimile or mechanical signature as and when deemed necessary by ~~the~~ such Lender, ~~blank forms of B/As~~ drafts in the ~~form requested~~ forms prescribed by ~~the~~ such Lender (if such Lender is a BA Lender), for bankers’ acceptances denominated in Cdn. ~~In this respect, it is the Borrowers’ responsibility~~ Dollars (each such executed draft which has not yet been accepted by a Lender being referred to ~~furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement~~as a “Draft”) or BA Equivalent Note. Each ~~Borrower recognizes~~ Bankers’ Acceptance and ~~agrees that all B/As signed and/or endorsed~~ BA Equivalent Note executed and delivered by ~~the~~ a Lender on behalf of ~~such Borrower shall bind such~~ the Borrower as ~~fully and effectually~~ provided for in this Section will be as binding upon the Borrower as if ~~signed in~~ it had been executed and delivered by a duly authorized officer of the ~~handwriting~~ Borrower. (b) All such Drafts or BA Equivalent Notes will be held by each Lender subject to the same degree of care as if they were such Lender’s own property kept at the place at which the Drafts or BA Equivalent Notes are ordinarily kept by such Lender. Each Lender, upon written request of the Borrower, will promptly advise the Borrower of the number and ~~duly issued~~ designation, if any, of the Drafts and BA Equivalent Notes then held by ~~the proper signing officers~~ it. (c) The Administrative Agent, promptly following receipt of ~~such Borrower. The Lender is hereby authorized (in accordance with~~ a Borrowing Request ~~relating~~ requesting Bankers’ Acceptances, will (i) advise each BA Lender of the face amount and the term of the Draft to be accepted by it, and (ii) advise each applicable Non BA Lender of the face amount and term of the BA Equivalent Note to be purchased by it. All Drafts to be accepted from time to time by each BA Lender that is a ~~B/A Borrowing~~member of a clearing service will be payable to such clearing service. The term of all Bankers’ Acceptances and BA Equivalent Notes issued pursuant to any Borrowing Request will be identical. Each Bankers’ Acceptance and BA Equivalent Note will be dated the date on which it is issued and will be for a term of 30, 60, 90 or 180 days provided that in no event will the term of a Bankers’ Acceptance or a BA Equivalent Note extend beyond the Maturity Date. The face amount of the Draft (or the aggregate face amount of the Drafts) to ~~issue such B/As endorsed in blank in such~~ be accepted at any time by each Lender which is a BA Lender, and the face ~~amounts as may~~ amount of the BA Equivalent Notes to be purchased at any time by each Lender which is a Non BA Lender, will be determined by the ~~Lender; provided that~~ Administrative Agent based upon the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by the Lender. The Lender shall not be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct Applicable Percentage of the ~~Lender or its officers, employees, agents or representatives~~respective Commitments of the Lenders. ~~The Lender shall maintain~~ In determining a ~~record with respect to B/As (a) received by it in blank hereunder, (b) voided by it~~ Lender’s Applicable Percentage of a request for ~~any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower~~Bankers’ Acceptances, the ~~Lender shall cancel all forms of B/A which have been pre-signed~~ Administrative Agent, in its sole discretion, will be entitled to increase or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, decrease the face amount of ~~each B/A~~ any Draft, or BA Equivalent Note to be the nearest $1,000. (d) Each BA Lender will complete and accept on the applicable date of Borrowing a Draft having a face amount (or Drafts having the face amounts) and term advised by the Administrative Agent pursuant to Section 2.06(c). Each applicable BA Lender will purchase on the applicable date of Borrowing the Bankers’ Acceptance or Bankers’ Acceptances accepted by it, for an aggregate price equal to the BA Discount Proceeds of such Bankers’ Acceptance (or Bankers’ Acceptances). Each applicable BA Lender ~~shall be in~~ that is a ~~minimum aggregate amount~~ member of ~~Cdn$500,000 and shall be~~ a ~~whole multiple~~ clearing service is hereby authorized to release the Bankers’ Acceptance accepted by it to such clearing house upon receipt of ~~Cdn$50,000~~confirmation that such clearing house holds such Bankers’ Acceptance for the account of such BA Lender. ~~2.5.6 Upon acceptance of a B/A by the~~ (e) Each Non BA Lender, ~~the Lender unless otherwise requested by a Borrower~~in lieu of accepting Drafts or purchasing Bankers’ Acceptances on any date of Borrowing, ~~shall purchase, or arrange for the~~ will complete and purchase ~~of, each B/A~~ from the Borrower at on such date of Borrowing a BA Equivalent Note in a face amount and for a term identical to the ~~Discount Rate~~ face amount and ~~shall pay~~ term of the Draft or Drafts which such Non BA Lender would have been required to accept on such date of Borrowing if it were a BA Lender, for a price equal to the BA Discount Proceeds of such BA Equivalent Note. (f) The Borrower will pay to ~~the Borrower in respect thereof. An Acceptance Fee shall be payable by the Borrower to the~~ each BA Lender in respect of each ~~B/A~~ Draft tendered by the Borrower to and accepted by ~~the Lender~~ such BA Lender, and ~~such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid~~ to ~~the Lender at the time of acceptance of such B/A by the~~ each Non BA Lender in ~~the event that the Borrower does not request the Lender~~ respect of each BA Equivalent Note tendered to ~~purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted~~ and purchased by itsuch Non BA Lender, as a condition of such acceptance or purchase, the BA Stamping Fee in accordance with Section 2.06(g) below. ~~2.5.8 With respect to~~ (g) Upon acceptance of each ~~B/A Borrowing, at~~ Draft or ~~before 10:00 a.m. one Business Day before the last day~~ purchase of ~~the Contract Period of such B/As~~each BA Equivalent Note, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment will pay to the applicable Lender ~~of an amount equal~~ the related fee specified in Section 2.06(f), and to facilitate payment such Lender will be entitled to deduct and retain for its own account the ~~aggregate face~~ amount of such ~~B/As on~~ fee from the ~~last day~~ amount to be transferred by such Lender to the Administrative Agent for the account of the ~~Contract Period~~ Borrower pursuant to this Agreement in respect of the sale of the related Bankers’ Acceptance or of such ~~B/As.~~ BA Equivalent Note. (h) If the Administrative Agent determines in good faith, which determination will be final, conclusive and binding upon the Borrower, and so notifies the Borrower, that there does not exist at the applicable time a normal market in Canada for the purchase and sale of bankers’ acceptances, any right of the Borrower ~~fails~~ to ~~make~~ require the Lenders to purchase Bankers’ Acceptances and BA Equivalent Notes under this Agreement will be suspended until the Administrative Agent determines that such ~~payment, such maturing B/As shall~~ market does exist and gives notice thereof to the Borrower and any Borrowing Request requesting Bankers’ Acceptances will be deemed to ~~have been converted on the last day of the Contract Period into~~ be a Borrowing Request requesting a Canadian Prime Loan in a similar aggregate principal amount. (i) On the date of maturity of each Bankers’ Acceptance or BA Equivalent Note, the Borrower will pay to the Administrative Agent, for the account of the holder of such Bankers’ Acceptance or BA Equivalent Note, in Canadian Dollars an amount equal to the face amount of such ~~B/As~~ Bankers’ Acceptance or BA Equivalent Note, as the case may be. In the case of a continuance of a Bankers’ Acceptance or BA Equivalent Note, in order to satisfy the continuing liability of the Borrower to a Lender for the face amount of the maturing Bankers’ Acceptance or BA Equivalent Note, the Lender will determine and retain the BA Discount Proceeds of the new Bankers’ Acceptance or BA Equivalent Note, and the Borrower ~~shall~~ will, on the maturity date of the maturing Bankers’ Acceptance or BA Equivalent Note, pay to the Administrative Agent for the account of the relevant Lender (i) the difference between the principal amount of the maturing Bankers’ Acceptance or BA Equivalent Note and the BA Discount Proceeds from the new Bankers’ Acceptance or BA Equivalent Note, and (ii) the BA Stamping Fee in respect of the new Bankers’ Acceptance or BA Equivalent Note. The obligation of the Borrower to make such payment will not be prejudiced by the fact that the holder of such Bankers’ Acceptance is the Lender that accepted such Bankers’ Acceptances. No days of grace will be claimed by the Borrower for the payment at maturity of any Bankers’ Acceptance or BA Equivalent Note. If the Borrower does not make such payment, from the proceeds of a Borrowing obtained under this Agreement or otherwise, the amount of such required payment will be deemed to ~~have irrevocably requested such conversion without the execution of~~ be a ~~Borrowing Request. 2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due~~ Canadian Prime Loan to the Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower ~~who requested such B/A shall pay~~ from the Lender that ~~has~~ accepted ~~and~~ such Bankers’ Acceptance or purchased such ~~B/A~~ BA Equivalent Note. (j) The signature of any duly authorized officer of the ~~full face amount~~ Borrower (or its attorneys, including attorneys appointed pursuant to Section 2.06(a)) on a Draft or a BA Equivalent Note may be mechanically reproduced in facsimile, and all Drafts and BA Equivalent Notes bearing such facsimile signature will be as binding upon the Borrower (or its attorneys, including attorneys appointed pursuant to Section 2.06(a)) as if they had been manually signed by such officer, notwithstanding that such Person whose manual or facsimile signature appears on such Draft or BA Equivalent Note may no longer hold office at the date of such ~~B/A and, after such payment,~~ Draft or BA Equivalent Note or at the ~~Borrowers shall have no further liability in respect~~ date of acceptance of such ~~B/A and the~~ Draft by a BA Lender ~~shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A.~~or at any time thereafter. ~~2.5.10~~ (k) If any Event of Default ~~shall occur~~ has occurred and be is continuing, the ~~Borrowers shall~~ Borrower will deposit in an ~~interest bearing~~ account with the ~~Lender~~Administrative Agent, established in the name of the ~~Lender~~Administrative Agent for the benefit of the Lenders, an amount in cash equal to the face amount of all ~~B/As~~ Bankers’ Acceptances then outstanding; provided that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower described in clause (h) or (i) of Article VII. ~~Such~~ Each such deposit shall be held by the ~~Lender~~ Administrative Agent as collateral for the payment and performance by the Borrower of ~~the~~ its obligations ~~of the Borrowers~~ under this Agreement. The Borrower will take all steps reasonably necessary to ensure that the security interest of the Lender in such deposit has priority over all other interests therein. The Administrative Agent shall have exclusive dominion and control, including ~~the~~ exclusive right of withdrawal, over such account. ~~The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and~~ Other than any interest earned ~~on the deposit or~~ on the investment of such ~~deposit, if mutually agreed~~deposits, which investments shall be made at the ~~Borrowers’~~ option and sole discretion of the Administrative Agent (which will use reasonable efforts to obtain a return at market rates for such cash deposits) and at the Borrower’s risk and ~~expense~~ expense, such deposits shall not bear interest. Interest or profits, if any , on such investments shall accumulate in such account. Moneys in such account ~~shall~~ will be applied by the ~~Lender~~ Administrative Agent to reimburse the ~~Lender~~ Lenders for payments made under ~~B/As~~ Bankers’ Acceptances for which ~~it has~~ they have not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the ~~Borrowers~~ Borrower under this Agreement. If the ~~Borrowers are~~ Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) ~~shall~~ will be returned to the ~~Borrowers~~ Borrower within three Business Days after all Events of Default have been cured or waived.

Appears in 1 contract

Samples: Credit Agreement (Amerisourcebergen Corp)

Bankers’ Acceptances. ~~2.5.1 Subject~~ (a) Notwithstanding anything to the contrary contained herein, any Local Fronting Lender may agree (in its sole discretion from time to time) to create bankers’ acceptances under its Currency Sublimit by way of the acceptance and discount of Drafts (the “Acceptances”) pursuant to this Section 6.9; provided, however, that no Local Fronting Lender shall have any obligation to create and/or discount Acceptances, regardless of any prior practice of doing so for the account of such Local Borrowing Subsidiary. Any Acceptances created pursuant to this Section 6.9 shall be denominated in the Denomination Currency for the relevant Local Fronting Lender (and not in Dollars), and shall be for such tenor and in such amount as may be mutually agreed upon by the relevant Local Fronting Lender and Local Borrowing Subsidiary; provided, however, that in no event shall any Acceptance mature after the date which is thirty (30) days prior to the Multi-Currency Termination Date. (b) Unless the relevant Local Borrowing Subsidiary and Local Fronting Lender otherwise agree, the relevant Local Borrowing Subsidiary shall give to the relevant Local Fronting Lender not less than two (2) Business Days’ prior written notice of its intent to borrow by way of Acceptances from any Local Fronting Lender which has agreed to accept and discount Drafts for the account of such Local Borrowing Subsidiary, which notice shall be accompanied by (i) a Draft which has been completed, executed and delivered by a duly authorized officer of such Local Borrowing Subsidiary and (ii) such other documents, instruments and certificates as such Local Fronting Lender reasonably may request; provided, however, that, after giving effect to the creation of such Acceptance, the Local Outstandings owing to such Local Fronting Lender shall not exceed the amount equal to its Currency Sublimit then in effect. On the requested borrowing date, the relevant Local Fronting Lender will accept such Draft and discount such accepted Draft in accordance with the provisions of Section 6.9(c). (c) Any Local Fronting Lender may, in its sole discretion, elect to discount Drafts of the relevant Local Borrowing Subsidiary on the date upon which such Local Fronting Lender accepts such Drafts by discounting such Draft at the rate per annum equal to the Local Rate (which may be a different rate than the Local Rate then payable on account of Local Loans in such Denomination Currency) then in effect plus the Applicable Margin then in effect for Local Rate Loans; provided, however, that, unless the relevant Local Fronting Lender and Local Borrowing Subsidiary otherwise agree, such discount shall be calculated by, first, discounting the aggregate face amount of such Draft at the rate per annum equal to the Local Rate then in effect and, second, discounting the result thereof at the rate per annum equal to the Applicable Margin then in effect for Local Rate Loans. Promptly following such discounting (and, in any event, on the date thereof), such Local Fronting Lender shall make available to such Local Borrowing Subsidiary the amount equal to the discounted face amount of such Draft in the manner in which such Local Fronting Lender makes available Local Loans pursuant to Section 6.3. (d) Each Local Borrowing Subsidiary hereby unconditionally agrees to pay to the relevant Local Fronting Lender the aggregate, undiscounted face amount of each Draft accepted by such Local Fronting Lender hereunder on the maturity date thereof (or on such earlier date upon which the obligations of such Local Borrowing Subsidiary under this Agreement shall become or shall have been declared due and payable pursuant to the terms and conditions of this Agreement, any Borrower may request a Borrowing by presenting drafts for acceptance and purchase as B/As by the Lender. Notwithstanding any other provision of this Agreement, to the extent the Lender is unable to accept drafts, the Lender may make an advance to the Borrower in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). ~~The principal~~ Interest shall accrue on any amount of owing pursuant to this Section 6.9(d) which is not paid when due (whether by scheduled maturity, mandatory prepayment, acceleration or otherwise) from the date such amount becomes due until paid in full at a ~~B/A Equivalent Loan shall be~~ fluctuating rate per annum equal to the ~~face amount of the applicable draft that~~ rate which would ~~otherwise~~ then be issued to the Lender in connection therewith, and the provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by the Lender. The Lender shall not be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears payable on any ~~B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid~~ overdue Local Rate Loans and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by such Local Borrowing Subsidiary upon demand by such Local Fronting Lender. (e) Each Multi-Currency Lender hereby unconditionally and irrevocably agrees to purchase undivided participating interests in the ~~Borrower~~ Acceptances created by each Local Fronting Lender in accordance with the provisions of Section 6.4. (f) Notwithstanding anything to the ~~Lender in respect of each B/A accepted~~ contrary contained herein, the indefeasible prepayment by the ~~Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid~~ relevant Local Borrowing Subsidiary to the relevant Local Fronting Lender ~~at the time~~ of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount all or ~~otherwise dispose~~ a portion of any or all B/As accepted and purchased by it. 2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such B/As on the last day of the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As outstanding Acceptance shall be deemed to ~~have been converted on~~ constitute a prepayment of such portion of such Acceptance for all purposes hereunder, regardless of whether the ~~last day~~ relevant Local Fronting Lender has distributed such amount to the holder of the Contract Period into a Canadian Prime Loan in an amount equal to the face amount of such B/As and the Borrower shall be deemed to have irrevocably requested such conversion without the execution of a Borrowing Requestunderlying Draft. 2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due to the Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, the Borrowers shall have no further liability in respect of such B/A and the Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waived.

Appears in 1 contract

Samples: Revolving Credit Agreement (Revlon Consumer Products Corp)

Bankers’ Acceptances. ~~2.5.1 Subject~~ (a) Promptly following receipt of a Notice of Availment requesting Bankers’ Acceptances, the Administrative Agent shall advise the applicable Lenders of the face amount and term of each Draft to be accepted by it and whether such Lender is required by such Notice of Availment to purchase the Bankers’ Acceptances accepted by it. (b) The term of all Bankers’ Acceptances issued pursuant to any Notice of Availment shall be identical. The aggregate face amount of Bankers’ Acceptances issued pursuant to any Notice of Availment shall not be less than $1,000,000. Each Bankers’ Acceptance shall be dated the Borrowing Date on which it is issued, and shall be for a term of one, two, three or six months, provided that in no event shall the applicable maturity of a Bankers’ Acceptance extend beyond the Maturity Date for the applicable Tranche or Credit. (c) The aggregate face amount of the Drafts to be accepted at any time by a Lender shall be determined by the Administrative Agent based on such Lender’s Pro Rata Share, except that, if the face amount of any Draft to be accepted by a Lender, determined as provided for above, would not be $1,000 or a whole multiple of $1,000, the Administrative Agent shall either increase or decrease such face amount to the ~~terms~~ nearest whole multiple of $1,000 except that in the case of a requested Borrowing under the Term A Credit decrease such face amount to the nearest whole multiple of $1,000, with the balance being advanced or continued by way of Prime Rate Loans. (d) Each Lender shall complete and ~~conditions~~ accept Drafts on the applicable Borrowing Date having the face amounts and term advised by the Administrative Agent pursuant to Section 2.9(a). If required to do so pursuant to any Notice of Availment, each Lender shall purchase on the applicable Borrowing Date the Bankers’ Acceptances accepted by it, for an aggregate price equal to the BA Discount Proceeds of such Bankers’ Acceptances. (e) In order to facilitate the issuance of Bankers’ Acceptances pursuant to this Agreement, the Borrower hereby authorizes each of the applicable Lenders as the Borrower’s attorney, to complete, sign and endorse drafts or depository bills (as defined in the Depository Bills and Notes Act (Canada) (each such executed draft or xxxx being herein referred to as a “Draft”) on its behalf in handwritten form or by facsimile or mechanical signature or otherwise in accordance with the applicable Notice of Availment and, once so completed, signed and endorsed to accept them as Bankers’ Acceptances under this Agreement and then, if applicable, purchase, discount or negotiate such Bankers’ Acceptances in accordance with the provisions of this Agreement. Drafts so completed, ~~any~~ signed, endorsed and negotiated on behalf of the Borrower ~~may request~~ by an applicable Lender shall bind the Borrower as fully and effectively as if so performed by a Responsible Officer of the Borrower. Each Draft of a Bankers’ Acceptance completed, signed or endorsed by a Lender shall mature on the last day of the stated term thereof. (f) Any Drafts to be used for Bankers’ Acceptances shall be held by the applicable Lender in safekeeping with the same degree of care as if they were such Lender’s own property being kept at the place at which they are to be held. The Borrower may, by written notice to the Administrative Agent, designate persons other than Responsible Officers to give the Administrative Agent instructions regarding the manner in which Drafts are to be completed and the times at which they are to be issued; provided however that receipt by the Administrative Agent of a Notice of Availment requesting a Borrowing by ~~presenting drafts~~ way of Bankers’ Acceptances shall be deemed to be sufficient authority from Responsible Officers or such designated persons for ~~acceptance~~ each of the applicable Lenders to complete, and issue Drafts in accordance with such notice. None of the Administrative Agent nor any of the applicable Lenders nor any of their respective directors, officers, employees or representatives shall be liable for any action taken or omitted to be taken by any of them under this Section 2.9(f) except for their own respective gross negligence or wilful misconduct. (g) If the Administrative Agent determines in good faith, which determination shall be final, conclusive and binding upon the Borrower, and so notifies the Borrower, that there does not exist, at the applicable time, a normal market in Canada for the purchase ~~as B/As by~~ and sale of bankers’ acceptances, any right of the ~~Lender. Notwithstanding any other provision of~~ Borrower to require the Lenders to purchase Bankers’ Acceptances under this ~~Agreement,~~ Agreement shall be suspended until the Administrative Agent determines that such market does exist and gives notice thereof to the ~~extent~~ Borrower, and any Notice of Availment requesting Bankers’ Acceptances shall be deemed to be a Notice of Availment requesting Prime Rate Loans in a similar aggregate principal amount. (h) On the ~~Lender is unable to accept drafts~~date of maturity of each Bankers’ Acceptance, the ~~Lender may make an advance~~ Borrower shall pay to the ~~Borrower~~ Administrative Agent, for the account of the holder of such Bankers’ Acceptance, Cdn. Dollars in ~~lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). The principal~~ an amount ~~of a B/A Equivalent Loan shall be~~ equal to the face amount of ~~the applicable draft that would otherwise be issued to the Lender in connection therewith, and the provisions of this Agreement shall apply to~~ such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender)Bankers’ Acceptance. The ~~Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect~~ obligation of the Borrower to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of make such Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by the Lender. The Lender payment shall not be ~~liable for any damage, loss or other claim arising~~ prejudiced by ~~reason of any loss or improper use~~ the fact that the holder of any such ~~instrument except~~ Bankers’ Acceptance is the Lender that accepted such Bankers’ Acceptance. No days of grace shall be claimed by the Borrower for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled payment at ~~their respective maturities. On request by or on behalf~~ maturity of any ~~Borrower~~Bankers’ Acceptance. If the Borrower does not make such payment, from the proceeds of Accommodation obtained under this Agreement or otherwise, the Lender ~~shall cancel all forms~~ that accepted such Bankers’ Acceptance shall, without receipt of ~~B/A which~~ a Notice of Availment, irrespective of whether any applicable conditions precedent under this Agreement have been ~~pre-signed or pre-endorsed on behalf~~ met and without waiver of ~~such Borrower and which are held~~ the Default constituted by the ~~Lender and are not required to be issued in accordance with such~~ Borrower’s ~~irrevocable notice. 2.5.4 Drafts of~~ failure to make such payment, make a Prime Rate Loan to the Borrower ~~to be accepted as B/As hereunder shall be signed as set forth~~ under the applicable Tranche or Credit in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of ~~each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000~~ such Bankers’ Acceptance and shall ~~be a whole multiple~~ promptly give notice of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds such Loan to the Borrower and the Administrative Agent (which shall promptly give similar notice to the other Lenders). The Borrower agrees to accept each such Prime Rate Loan and irrevocably authorizes and directs the applicable Lender to apply the proceeds of each such Loan in ~~respect thereof. An Acceptance Fee shall be payable by~~ payment of the liability of the Borrower with respect to the Lender in respect of each B/A accepted by the Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid to the Lender at the time of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/Asrelated Bankers’ Acceptance. ~~2.5.7 The~~ (i) Each applicable Lender may ~~at any time and~~ from time to time hold, sell, rediscount or otherwise dispose of any or all ~~B/As~~ Bankers’ Acceptances accepted and purchased by it. ~~2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As, the~~ (j) The Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such B/As on the last day of the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As shall be deemed to have been converted on the last day of the Contract Period into a Canadian Prime Loan in an amount equal to the face amount of such B/As and the Borrower shall be deemed to have irrevocably requested such conversion without the execution of a Borrowing Request. 2.5.9 The Borrowers waive waives presentment for payment and any other defence to the payment of any amounts due to ~~the~~ any applicable Lender in respect of a ~~B/A~~ Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason of ~~such B/A~~ the Bankers’ Acceptance being held, at the maturity thereof, by ~~the~~ such Lender in its own ~~right,~~ right and the ~~Borrowers agree~~ Borrower agrees not to claim any days of grace if ~~the Lender,~~ such Lender as ~~holder,~~ holder sues the ~~Borrowers~~ Borrower on the ~~B/A~~ Bankers’ Acceptance for payment of the amount payable by the ~~Borrowers~~ Borrower thereunder~~. On~~ . (k) If any Bankers’ Acceptance is outstanding on the ~~last day of the Contract Period of a B/A~~Maturity Date for any Tranche or Credit, or ~~such earlier date as may be required or permitted pursuant to the provisions~~ at any time that an Event of ~~this Agreement~~Default occurs and is continuing, the Borrower ~~who requested such B/A shall pay~~ will, and will cause each Subsidiary of the ~~Lender that has accepted and purchased such B/A~~ Borrower to, immediately upon demand by the ~~full face amount~~ Administrative Agent provide to the Administrative Agent, for the account of the holder of such ~~B/A and~~Bankers’ Acceptance, after such payment, the Borrowers shall have no further liability in respect of such B/A and the Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing, the Borrowers shall deposit Cash Collateral in an ~~interest bearing account with the Lender, in the name of the Lender, an~~ amount ~~in cash~~ equal to the face amount of ~~all B/As then outstanding~~such Bankers’ Acceptance (together with such security agreement, officers’ certificates and legal opinions as the Administrative Agent may reasonably request). Such ~~deposit~~ Cash Collateral (together with interest thereon) shall be held by the ~~Lender as collateral~~ Administrative Agent, subject to Section 10.4, for ~~the~~ payment ~~and performance~~ of the ~~obligations~~ liability of the ~~Borrowers under this Agreement. The Lender shall have exclusive dominion~~ Borrower in respect of such Bankers’ Acceptance and ~~control, including the exclusive right of withdrawal, over such account. The deposit~~ shall bear interest for such terms as are selected from time to time by the Administrative Agent at the wholesale money market rate ~~customarily offered~~ of the Administrative Agent for deposits of similar amounts and maturities. Any balance of such funds (and interest thereon) remaining after payment or retirement of such liability shall be held by the Administrative Agent as security for the remaining liabilities of the Borrower under the Credit Documents. (l) The amount of Accommodation constituted by any Bankers’ Acceptance shall be the face amount of such Bankers’ Acceptance. (m) Notwithstanding anything contained in this Agreement or any other Credit Document, if a Lender ~~for deposits in similar circumstances and interest earned~~ is a Non BA Lender, such Lender shall make available to the Borrower prior to 11:00 a.m. on the ~~deposit~~ applicable Borrowing Date, a Cdn. Dollar loan by way of Discount Note (a “BA Loan”) in the principal amount equal to such Lender’s Pro Rata Share under the applicable Tranche or on Credit, of the ~~investment~~ total amount of Borrowings requested by way of Bankers’ Acceptances pursuant to the applicable Notice of Availment, such ~~deposit, if mutually agreed, which investments~~ BA Loan to be funded in the same manner as provided in Section 2.8. Such BA Loan shall ~~be made at~~ have the ~~Borrowers~~same term as the Bankers’ ~~risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As~~ Acceptances for which it ~~has not~~ is a substitute and shall permit such Lender to obtain the same effective rate as if such Lender had been ~~reimbursed and,~~ paid the Applicable Stamping Fee for accepting a Bankers’ Acceptance and purchased such Bankers’ Acceptance at a discount from the face amount of such Bankers’ Acceptance calculated at the discount rate per annum equal to the ~~extent not so applied~~BA Non-Schedule I Discount Rate for the term of such Bankers’ Acceptance, if on the ~~maturity~~ basis, and the Borrower hereby agrees that, for each such BA Loan, interest shall be payable in advance on the date of such extension of credit by such Lender deducting the ~~Loans has~~ interest payable in respect thereof from the principal amount of such BA Loan. For greater certainty, the net amount to be made available by each Lender on any date in respect of a BA Loan made by it on such date shall be the same as the amount of BA Discount Proceeds that such Lender would have been ~~accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are~~ required to ~~provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (~~make available to the ~~extent not applied as aforesaid) shall be returned to~~ Borrower had such Lender been a Schedule I Lender that purchased the ~~Borrowers within three Business Days after all Events of Default have been cured or waived~~Bankers’ Acceptances accepted by it on such date.

Appears in 1 contract

Samples: Credit Agreement (Intertan Inc)

Bankers’ Acceptances. ~~2.5.1~~ (a) Subject to the terms and conditions of this Agreement, ~~any~~ the Borrower may request a Borrowing by presenting drafts for acceptance ~~and purchase~~ and, if applicable, purchase, as B/As by the Lender. Notwithstanding any other provision of this Agreement, to the extent the Lender is unable to accept drafts, the Lender may make an advance to the Borrower in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). The principal amount of a B/A Equivalent Loan shall be equal to the face amount of the applicable draft that would otherwise be issued to the Lender in connection therewith, and the provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent LoansLenders. ~~2.5.2~~ (b) No Contract Period with respect to a B/A to be accepted ~~and purchased under the Credit Facility~~ and, if applicable, purchased, as a Revolving Advance shall extend beyond the Revolving Commitment Termination Date and no Contract Period with respect to a B/A to be accepted and, if applicable, purchased, as a Term Advance shall extend beyond the Final Maturity Date. ~~2.5.3~~ (c) To facilitate availment of B/A ~~Borrowings (other than B/A Equivalent Loans)~~Advances, ~~each~~ the Borrower hereby appoints ~~the~~ each Lender as its attorney to sign and endorse on its behalf (in accordance with a Notice of Borrowing ~~Request~~ or Notice of Continuation relating to a B/A ~~Borrowing~~Advance), in handwriting or by facsimile or mechanical signature as and when deemed necessary by ~~the~~ such Lender, blank forms of B/As in the form requested by ~~the~~ such Lender. In this respect, it is ~~the Borrowers’~~ each Lender's responsibility to ~~furnish the Lender with~~ maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. ~~Each~~ The Borrower recognizes and agrees that all B/As signed and/or endorsed by ~~the~~ a Lender on behalf of ~~such~~ the Borrower shall bind ~~such~~ the Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of ~~such~~ the Borrower. ~~The~~ Each Lender is hereby authorized (in accordance with a Notice of Borrowing ~~Request~~ or Notice of Continuation relating to a B/A ~~Borrowing~~Advance) to issue such B/As endorsed in blank in such face amounts as may be determined by ~~the~~ such Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by ~~the~~ such Lender. ~~The~~ No Lender shall ~~not~~ be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except ~~for~~ the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. ~~The~~ Each Lender shall maintain a record with respect to B/As (ai) received by it in blank hereunder, (bii) voided by it for any reason, (ciii) ~~accepted or~~ accepted and purchased by it hereunder, and (div) ~~cancelled~~ canceled at their respective maturities. On request by or on behalf of ~~any~~ the Borrower, ~~the~~ a Lender shall cancel all forms of B/A As which have been pre-signed or pre-endorsed on behalf of ~~such~~ the Borrower and ~~which~~ that are held by ~~the~~ such Lender and are not required to be issued in accordance with ~~such~~ the Borrower’s 's irrevocable notice. Alternatively, the Borrower agrees that, at the request of the Administrative Agent, the Borrower shall deliver to the Administrative Agent a "depository note" which complies with the requirements of the Depository Bills and Notes Act (Canada), and consents to the deposit of any such depository note in the book-based debt clearance system maintained by the Canadian Depository for Securities. ~~2.5.4~~ (d) Drafts of a the Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section ~~2.5~~2.11. Notwithstanding that any ~~person~~ Person whose signature appears on any B/A may no longer be an authorized signatory for ~~the~~ any Lender or a the Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on the Borrower. (e) Promptly following the receipt of a ~~Borrower who requested such~~ Notice of Borrowing or Notice of Continuation specifying a Borrowing or Continuation of a Borrowing by way of B/~~A. 2.5.5~~ As, the Administrative Agent shall so advise the Lenders and shall advise each Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Lenders). In the case of Advances comprised of B/A ~~Borrowings~~Advances, the aggregate face amount of ~~each~~ the B/A As to be accepted by ~~the~~ a Lender shall be in a minimum aggregate amount of ~~Cdn$500,000~~ Cdn.$100,000 and shall be a whole multiple of ~~Cdn$50,000~~Cdn.$100,000, and such face amount shall be in the Lenders' pro rata portions of such Borrowing, provided that the Administrative Agent may in its sole discretion increase or reduce any Lender's portion of such B/A Advance to the nearest Cdn.$100,000 without reducing the overall Commitments. ~~2.5.6 Upon~~ (f) The Borrower may specify in a Notice of Borrowing or Notice of Continuation that it desires that any B/As requested by such Notice of Borrowing or Notice of Continuation be purchased by the Lenders, in which case the Lenders shall, upon acceptance of a B/A by ~~the~~ a Lender, ~~the Lender unless otherwise requested by a Borrower, shall~~ purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate for such Lender applicable to such B/A accepted by it and ~~shall pay~~ provide to the Administrative Agent the Discount Proceeds to for the ~~Borrower in respect thereof~~account of the Borrower. An The Acceptance Fee ~~shall be~~ payable by the Borrower to ~~the~~ a Lender under Section 2.06(iv) in respect of each B/A accepted by ~~the~~ such Lender ~~and such Acceptance Fee~~ shall ~~either~~ be set off against the Discount Proceeds payable by ~~the~~ such Lender under this Section ~~2.5.6 or paid to the Lender at the time of acceptance of such B/A by the Lender in the event that~~ 2.11. (g) Where the Borrower ~~does not request~~ so specifies in its Notice of Borrowing or Notice of Continuation, it shall make its own arrangements for the ~~Lender to purchase the accepted~~ marketing of B/As, in which case, by subsequent notice to the Administrative Agent, it shall provide the Administrative Agent, who shall in turn notify each Lender, with information as to the discount proceeds payable by the purchasers of the B/As and the party to whom delivery of the B/As by each Lender is to be made against delivery to each Lender of the applicable discount proceeds, but if it does not do so, the Borrower shall initiate a telephone call to the Administrative Agent by 9:00 a.m. (Calgary local time) on the date of advance, and provide such information to the Administrative Agent. Any such telephonic advice shall be confirmed by a written notice by the Borrower to the Administrative Agent prior to 2:00 p.m. (Calgary local time) on the same day. ~~2.5.7 The~~ (h) Each Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it. ~~2.5.8~~ (i) If a Lender is not a bank listed on Schedule I, II or III of the Bank Act (Canada) or if a Lender notifies the Administrative Agent in writing that it is otherwise unable to accept bankers' acceptances, such Lender shall give notice to such effect to the Administrative Agent prior to 10:00 a.m., (Calgary local time), on the date of the requested credit extension (which notice may, if so stated therein, remain in effect with respect to subsequent requests for extension of credit by way of Bankers' Acceptance until revoked by notice to the Administrative Agent) and shall make available to the Administrative Agent, in accordance with Section 2.01 hereof prior to 11:00 a.m. (Calgary local time), on the date of such requested credit extension, a Canadian Dollar Eurodollar Rate Advance (a "BA LOAN") in the principal amount equal to such Lender's Commitment Percentage of the total amount of credit requested to be extended by way of Bankers' Acceptances. Such BA Loan shall have an Interest Period equal to the Contract Period of the Bankers' Acceptances for which it is a substitute and shall bear interest throughout the Interest Period applicable to such BA Loan at a rate per annum equal to the Canadian Dollar Eurodollar Rate plus the Eurodollar Rate Margin. Subject to repayment requirements, on the last day of the relevant Interest Period for such B/A Loan, the Borrower shall be entitled to Continue each such B/A Loan as another Type of Advance, or to roll over each such B/A Loan into another B/A Loan, all in accordance with the applicable provisions of this Agreement. (j) With respect to each B/A ~~Borrowing~~Advance, at or before ~~10:00~~ 9:00 a.m. ~~one~~ (Calgary local time) two Business ~~Day~~ Days before the last day of the Contract Period of such B/As, the Borrower ~~that requested the B/A~~ shall notify the ~~Lender~~ Administrative Agent by irrevocable ~~written~~ telephone notice, followed by a notice of rollover in substantially the form set forth in Exhibit B hereto on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the ~~Lender~~ Administrative Agent of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the ~~Lender~~ Administrative Agent on behalf of the Lenders of an amount equal to the aggregate face amount of such B/As on the last day of the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As shall be deemed to have been ~~converted~~ Continued on the last day of ~~the~~ such Contract Period ~~into~~ as a ~~Canadian~~ Prime ~~Loan~~ Rate Advance in an amount equal to the face amount of such B/~~As and the Borrower shall be deemed to have irrevocably requested such conversion without the execution of a Borrowing Request~~As. ~~2.5.9~~ (k) The ~~Borrowers waive~~ Borrower waives presentment for payment and any other ~~defence~~ defense to payment of any amounts due to ~~the~~ a Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by ~~the~~ such Lender in its own right, and the ~~Borrowers agree~~ Borrower agrees not to claim any days of grace if ~~the~~ such Lender, as holder, sues the ~~Borrowers~~ Borrower on the B/A for payment of the amount payable by the ~~Borrowers~~ Borrower thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower ~~who requested such B/A~~ shall pay the Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, the ~~Borrowers~~ Borrower shall have no further liability in respect of such B/A and ~~the~~ such Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. ~~2.5.10 If~~ (l) Except as required by any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of upon the occurrence of an Event of Default, ~~such amount (~~no B/A Advance may be repaid by the Borrower prior to the ~~extent not applied as aforesaid) shall be returned~~ expiry date of the Contract Period applicable to ~~the Borrowers within three Business Days after all Events of Default have been cured or waived~~such B/A Advance.

Appears in 1 contract

Samples: Canadian Credit Agreement (Burlington Resources Inc)

Bankers’ Acceptances. ~~2.5.1~~ 4.1 Subject to Section 4.3, and provided the ~~terms and~~ Borrower has not been notified by Royal by at least one Business Day preceding the proposed date for issuance of a Bankers' Acceptance that, because general market conditions have caused it to become impracticable to accept Drafts, it is no longer accepting Drafts in the ordinary course of ~~this~~ business, the Borrower may utilize the Credit Facility by issuing Bankers' Acceptances. Each Bankers' Acceptance accepted by Royal shall be deemed to be a utilization of the Credit Facility for the term of such Bankers' Acceptance in an amount equal to the Face Amount. 4.2 For the purposes of the Agreement, ~~any~~ the Face Amount of a Bankers' Acceptance shall be used when calculations are made to determine the amount of Borrowings. 4.3 The Borrower ~~may request a Borrowing~~ shall give Royal the following irrevocable notice prior to presenting its Drafts for acceptance: a) prior to 9:00 a.m. local time at Vancouver, British Columbia on the Business Day of presentation for Bankers' Acceptances aggregating less than Cdn$ or US$10,000,000; b) prior to 9:00 a.m. local time at Vancouver, British Columbia two Business Days immediately preceding the Business Day of presentation for Bankers' Acceptances aggregating Cdn$ or US$10,000,000 or more. The Borrower shall also notify Royal by ~~presenting drafts~~ giving the same prior notice of the method it proposes for ~~acceptance~~ payment of Bankers' Acceptances on maturity as set out in Section 4.12. 4.4 The Borrower shall execute and ~~purchase as B/As by the Lender. Notwithstanding any other provision~~ deliver to Royal its form of ~~this Agreement~~undertaking with respect to Bankers' Acceptances and, if applicable, Royal's form of authorization and undertaking in respect of Jumbo Bankers' Acceptances and, to the extent ~~the Lender~~ any such authorization or undertaking is unable to accept drafts, the Lender may make an advance to the Borrower in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). The principal amount of a B/A Equivalent Loan shall be equal to the face amount of the applicable draft that would otherwise be issued to the Lender in connection therewith, and not inconsistent with the provisions of ~~this Agreement shall apply~~ the Agreement, agrees to ~~such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment~~ comply therewith. All Drafts presented by the ~~Lender of Discount Proceeds as provided~~ Borrower for in acceptance pursuant to Section ~~2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will~~ 4.1 shall be ~~advancing B/A Equivalent Loans~~drawn on Royal's prescribed form. ~~2.5.2 No Contract Period~~ 4.5 The Borrower shall execute and deliver to Royal a supply of Drafts and Royal shall only deal with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (them in accordance ~~with~~ herewith. Royal shall not be responsible or liable for its failure to accept a ~~Borrowing Request relating to a B/A Borrowing)~~Draft as required hereunder if the cause of the failure is, in ~~handwriting~~ whole or ~~by facsimile or mechanical signature as and when deemed necessary by the Lender~~in part, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the Lender; provided that the aggregate amount thereof is equal due to the ~~aggregate amount~~ failure of ~~B/As required~~ the Borrower to ~~be accepted and purchased by the Lender. The Lender~~ provide such instruments to Royal on a timely basis, nor shall ~~not~~ Royal be liable for any damage, loss or other claim arising by reason of any loss or improper use of ~~any~~ such instrument except ~~for~~ a loss or improper use arising by reason of the ~~gross~~ negligence or wilful ~~misconduct~~ act of Royal. Royal agrees to use its best efforts to advise the Borrower in a timely manner when it requires additional executed Drafts. 4.6 In case any authorized signatory of the ~~Lender or its officers, employees, agents or representatives. The Lender~~ Borrower whose signatures shall ~~maintain~~ appear on the pre-signed Drafts shall cease to have such authority before the creation of a ~~record~~ Bankers' Acceptance with respect to B/As (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/ADraft, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000creation. ~~2.5.6 Upon acceptance of a B/A by~~ 4.7 Royal will date the ~~Lender~~Drafts as required and shall, forthwith after acceptance, deliver the ~~Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds~~ stamped Draft to the Borrower or, in ~~respect thereof~~accordance with the Borrower's instructions, to a person designated in writing by the Borrower. An Royal is under no obligation to purchase a Bankers' Acceptance ~~Fee shall be payable~~ for its own account. 4.8 Drafts delivered by the Borrower to Royal to be held by it need only be held in safekeeping with the ~~Lender~~ same degree of care as if they were Royal's property. If executed but incomplete Drafts are delivered to Royal, it may complete the same on behalf of the Borrower and in accordance with its instructions following a request from the Borrower to accept a Draft. 4.9 As an alternative to the Borrower providing a supply of Drafts to Royal the Borrower may request that Royal draw Drafts on behalf of the Borrower ("Jumbo Bankers' Acceptances"). If the Borrower has delivered to Royal its forms of undertaking and authorization in respect of ~~each B/A accepted by the Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid to the Lender at the time~~ Jumbo Bankers' Acceptances Royal may draw Drafts on behalf of ~~acceptance of such B/A by the Lender in the event that~~ the Borrower ~~does not request~~ and complete such Drafts in accordance with the ~~Lender to purchase the accepted B/As. 2.5.7 The Lender may at any time and~~ Borrower's requests from time to ~~time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it~~time. ~~2.5.8 With respect~~ 4.10 Each Bankers' Acceptance shall be issued and shall mature on a Business Day. 4.11 If the Borrower fails to ~~each B/A Borrowing~~provide to Royal the notice required by Section 4.3 or, at having given notice of its intention to present a Draft for acceptance or ~~before 10:00 a.m. one Business Day before~~ to convert from or to Bankers' Acceptances, fails to act in accordance with such notice, then, Royal, in its discretion, may decline to accept Bankers' Acceptances presented without notice. 4.12 Subject to the ~~last day~~ notice of ~~the Contract Period~~ method of ~~such B/As~~payment of maturing Bankers' Acceptances required by Section 4.3, the Borrower ~~that requested~~ may provide for payment for each Bankers' Acceptance issued by it by payment to Royal of the ~~B/A shall notify the Lender~~ Face Amount thereof by ~~irrevocable written notice~~10:00 a.m. local time at Vancouver, ~~followed by a notice of rollover~~ British Columbia on the ~~same day, if the Borrower intends to issue B/As on such last day~~ maturity date of the ~~Contract Period to provide for the payment~~ Bankers' Acceptance at Royal's Branch of ~~such maturing B/As~~Account. If the Borrower fails to ~~so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall~~ provide payment to ~~the Lender~~ Royal of an amount equal to the ~~aggregate face~~ Face Amount of a Bankers' Acceptance on its maturity, then Royal shall pay the Face Amount of such Bankers' Acceptance which payment shall be determined for all purposes to be a Canadian Advance if the Bankers' Acceptance was denominated in Canadian Funds and a U.S. Advance if the Bankers' Acceptance was denominated in U.S. Funds. 4.13 The Borrower shall not claim from Royal any days of grace for the payment at maturity of any Bankers' Acceptances. 4.14 As an acceptance fee for the acceptance by Royal of the Borrower's Drafts against the Credit Facility the Borrower shall pay in advance to Royal at or prior to the time of such acceptance an acceptance fee at the rates set forth in Schedule A calculated in relation to the Face Amount of each Bankers' Acceptance and on the basis of the number of days from and including the date of acceptance to and including the day immediately preceding the date of maturity. 4.15 In the event of the acceptance by Royal of a Bankers' Acceptance before the date of a change of the rates for acceptance fees as set forth in Schedule A which Bankers' Acceptance matures or becomes due and payable after such date, the acceptance fee shall be calculated by using the applicable rates for Bankers' Acceptances for the number of days the Bankers' Acceptance is outstanding during the fee period. Royal shall calculate the amount, if any, of any adjustment to the rates of acceptance fees resulting from the application of this Section 4.15 and shall advise the Borrower of the amount of any such ~~B/As~~ adjustment which shall be paid by it to Royal or by Royal to the Borrower by debiting or crediting the account of a Borrower, as the case may be. 4.16 Acceptance fees in respect of Bankers' Acceptances denominated in Canadian Funds shall be payable in Canadian Funds computed on the ~~last day~~ basis of a year of 365 days and in respect of Bankers' Acceptances denominated in U.S. Funds shall be payable in U.S. Funds computed on the basis of a year of 360 days. Acceptance Fees shall be adjusted from time to time in accordance with Section 3.6. 4.17 If at any time any reserve requirement in respect of Bankers' Acceptances is imposed upon Royal by any Canadian governmental regulatory authority which results in an increase in the net cost to Royal of maintaining the Bankers' Acceptances outstanding, and Royal has not claimed an Additional Amount from the Borrower pursuant to Section 3.18 in relation to outstanding Bankers' Acceptances, it shall have the right, subject to Section 3.20, after giving notice to the Borrower, to adjust the amount of the ~~Contract Period of~~ acceptance fee as necessary to compensate it for such ~~B/As. If the Borrower fails to make such payment~~cost increase if it imposes a similar adjustment on all acceptance fees then in effect with other borrowers, ~~such maturing B/As shall be deemed to have been converted on the last day of the Contract Period into a Canadian Prime Loan in an amount equal to the face amount of such B/As~~ and the Borrower shall ~~be deemed~~ pay to Royal at Royal's Branch of Account the amount of any such adjustment upon receipt of written notice thereof from Royal, which notice shall include details of Royal's calculations of the effect of such reserve requirements on its acceptance fees. The Borrower shall have ~~irrevocably requested~~ the right to review the accuracy of such ~~conversion without the execution of a Borrowing Request~~calculations. ~~2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due to~~ 4.18 No Banker's Acceptance shall mature on a date which is beyond the Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, the Borrowers shall have no further liability in respect of such B/A and the Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waivedTermination Date.

Appears in 1 contract

Samples: Operating Credit Agreement (Loewen Group Inc)

Bankers’ Acceptances. ~~2.5.1 Subject~~ (a) In order to ~~the terms and conditions~~ facilitate issues of Bankers' Acceptances pursuant to this Agreement, ~~any~~ the Borrower ~~may request a Borrowing by presenting drafts~~ authorizes each Lender, and for ~~acceptance and purchase as B/As by the Lender. Notwithstanding any other provision of~~ this ~~Agreement~~purpose appoints each Lender its lawful attorney, to ~~the extent the Lender is unable to accept drafts~~complete, the Lender may make an advance to the Borrower in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). The principal amount of a B/A Equivalent Loan shall be equal to the face amount of the applicable draft that would otherwise be issued to the Lender in connection therewith, and the provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse drafts drawn by the Borrower on ~~its behalf~~ such Lender, in the form prescribed by such Lender for bankers' acceptances (each such executed draft being referred to as a "Draft") issued in accordance with a ~~Borrowing Request relating~~ Notice of Availment delivered to ~~a B/A Borrowing),~~ the Administrative Agent pursuant to this Agreement on its behalf in ~~handwriting~~ handwritten or by facsimile or mechanical signature or otherwise and, once so completed, signed and endorsed, and following acceptance of them as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance Bankers' Acceptances under this Agreement, then discount, negotiate or deliver such Bankers' Acceptances in accordance with the provisions of this Section 2.08. ~~Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender~~ Drafts so completed, signed, endorsed, negotiated or delivered on behalf of ~~such~~ the Borrower by any Lender shall bind ~~such~~ the Borrower as fully and ~~effectually~~ effectively as if ~~signed in the handwriting of and duly issued~~ so performed by ~~the proper signing officers of such Borrower. The Lender is hereby~~ an authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by the Lender. The Lender shall not be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct officer of the ~~Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder,~~ Borrower. (b) ~~voided by it for any reason~~The Administrative Agent, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts promptly following receipt of a ~~Borrower to be accepted as B/As hereunder~~ Notice of Availment requesting Bankers' Acceptances, shall ~~be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the~~ advise each Lender ~~or a Borrower at the date~~ of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount and term of each ~~B/A~~ Draft to be accepted by ~~the Lender~~ it. (c) The term of all Bankers' Acceptances issued pursuant to any Notice of Availment shall be ~~in a minimum~~ identical. The aggregate face amount of ~~Cdn$500,000~~ Banker's Acceptances issued pursuant to any Notice of Availment shall not be less than Cdn.$5,000,000. Each Bankers' Acceptance shall be dated the Borrowing Date on which it is issued, and shall be for a term of one, two, three or six months provided that in no event shall the term of a Bankers' Acceptance issued extend beyond the Maturity Date applicable to such Lender accepting the Draft, as applicable. (d) The aggregate face amount of the Drafts to be accepted at any time by a Lender shall be a whole multiple of ~~Cdn$50,000~~Cdn.$100,000. ~~2.5.6 Upon acceptance of a B/A~~ (e) Each Lender shall complete and accept on the applicable Borrowing Date, Drafts having the face amounts and term advised by the ~~Lender~~Administrative Agent pursuant to Section 2.08(b). Each Lender shall purchase on the applicable Borrowing Date the Bankers' Acceptances accepted by it, for an aggregate price equal to the ~~Lender unless otherwise requested by a~~ BA Discount Proceeds of such Bankers' Acceptances. (f) If the Administrative Agent determines in good faith, which determination shall be final, conclusive and binding upon the Borrower, ~~shall purchase~~and so notifies the Borrower, ~~or arrange~~ that there does not exist, at the applicable time, a normal market in Canada for the purchase ofand sale of bankers' acceptances, ~~each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by~~ any right of the Borrower to require the ~~Lender~~ Lenders to purchase Bankers' Acceptances under this Agreement shall be suspended until the Administrative Agent determines that such market does exist and gives notice thereof to the Borrower, and any Notice of Availment requesting Bankers' Acceptances shall be deemed to be a Notice of Availment requesting Prime Rate Loans in ~~respect~~ a similar aggregate principal amount. (g) On the date of maturity of each B/A accepted by the Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid to the Lender at the time of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it. 2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract PeriodBankers' Acceptance, the Borrower shall ~~provide payment~~ pay to the ~~Lender~~ Administrative Agent, for the account of ~~an amount equal to~~ the ~~aggregate face amount~~ holder of such ~~B/As on the last day of the Contract Period of such B/As~~Bankers' Acceptance, Cdn. ~~If the Borrower fails to make such payment, such maturing B/As shall be deemed to have been converted on the last day of the Contract Period into a Canadian Prime Loan~~ Dollars in an amount equal to the face amount of such ~~B/As~~ Bankers' Acceptance. The obligation of the Borrower to make such payment shall not be prejudiced by the fact that the holder of any such Bankers' Acceptance is the Lender that accepted such Bankers' Acceptance. No days of grace shall be claimed by the Borrower for the payment at maturity of any Bankers' Acceptance. If the Borrower does not make such payment, from the proceeds of Accommodation obtained under this Agreement or otherwise, the Lender that accepted such Bankers' Acceptance shall, without receipt of a Notice of Availment, irrespective of whether any applicable conditions precedent under this Agreement have been met, make a Prime Rate Loan to the Borrower, in the face amount of such Bankers' Acceptance and shall promptly give notice of such Loan to the Borrower and the Administrative Agent (which shall promptly give similar notice to the other Lenders). The Borrower agrees to accept each such Prime Rate Loan and irrevocably authorizes and directs the applicable Lender to apply the proceeds of each such Loan in payment of the liability of the Borrower with respect to the related Bankers' Acceptance. Notwithstanding any other provision of this Agreement, all Prime Rate Loans made as contemplated by this subsection shall be deemed to have ~~irrevocably requested such conversion without~~ been continued pursuant to Section 3.06 and shall be payable by the ~~execution of a Borrowing Request~~Borrower accordingly. ~~2.5.9 The Borrowers waive presentment for payment and~~ (h) If any ~~other defence to payment~~ Bankers' Acceptance is outstanding on the Maturity Date, or at any time that an Event of ~~any amounts due~~ Default occurs, the Borrower will immediately upon demand by the Administrative Agent pay to the Administrative Agent, for the account of each Lender ~~in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of~~ that issued such ~~B/A being held~~Bankers' Acceptance, ~~at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A~~ for future payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, the Borrowers shall have no further liability Borrower's obligations in respect of such B/A and the Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, Bankers' Acceptances an amount ~~in cash~~ equal to the face amount of ~~all B/As then outstanding~~such Bankers' Acceptance. Such ~~deposit~~ funds (together with interest on such funds) shall be held by the ~~Lender as collateral~~ Administrative Agent, subject to Section 10.03, for ~~the~~ payment ~~and performance~~ of the ~~obligations~~ liability of the ~~Borrowers under this Agreement. The Lender shall have exclusive dominion~~ Borrower in respect of such Bankers' Acceptance and ~~control, including the exclusive right of withdrawal, over such account. The deposit~~ shall bear interest for such terms as are selected from time to time by the Administrative Agent at the wholesale money market rate ~~customarily offered~~ of the Administrative Agent for deposits of similar amounts and maturities. Any balance of such funds and interest remaining after payment of such Bankers' Acceptance to the holder thereof shall be, unless there exists an Event of Default or the Credit has matured and amounts remain owing by the ~~Lender for deposits~~ Borrower to the Lenders, repaid promptly by the Administrative Agent to the Borrower. If not required to be repaid to the Borrower in ~~similar circumstances~~ accordance with the preceding sentence, such balance and interest ~~earned on the deposit or on the investment of such deposit, if mutually agreed, which investments~~ shall be ~~made at~~ held by the ~~Borrowers’ risk~~ Administrative Agent as security for the remaining liabilities of the Borrower under the Credit Documents and ~~expense shall accumulate in such account. Moneys in such account~~ shall be applied ~~by the Lender~~ to ~~reimburse the Lender for payments made under B/As for which it has not~~ pay such liabilities as and when they shall become due and owing, and any remaining balance after all such liabilities shall have been ~~reimbursed and,~~ paid in full shall be promptly paid to the ~~extent not so applied~~Borrower. (i) The signature of any duly authorized officer of a the Borrower on a Draft may be mechanically reproduced in facsimile, and all Drafts bearing such facsimile signature shall be binding upon the Borrower as if they had been manually signed by such officer, notwithstanding that such Person whose manual or facsimile signature appears on such Draft may no longer hold office at the ~~maturity~~ date of such Draft or at the ~~Loans has been accelerated, be applied to satisfy other obligations~~ date of ~~the Borrowers under this Agreement. If the Borrowers are required to provide an~~ acceptance of such Draft by a Lender or at any time thereafter. (j) The amount of ~~cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid)~~ Accommodation constituted by any Bankers' Acceptance shall be ~~returned to~~ the ~~Borrowers within three Business Days after all Events~~ face amount of ~~Default have been cured or waived~~such Bankers' Acceptance.

Appears in 1 contract

Samples: Loan Agreement (MDS Inc)

Bankers’ Acceptances. ~~2.5.1 Subject~~ (a) Notwithstanding anything to the contrary contained herein, any Local Fronting Lender may agree (in its sole discretion from time to time) to create bankers’ acceptances under its Currency Sublimit by way of the acceptance and discount of Drafts (the “Acceptances”) pursuant to this Section 2.31; provided, however, that no Local Fronting Lender shall have any obligation to create and/or discount Acceptances, regardless of any prior practice of doing so for the account of such Local Borrowing Subsidiary. Any Acceptances created pursuant to this Section 2.31 shall be denominated in the Permitted Foreign Currency for the relevant Local Fronting Lender (and not in Dollars), and shall be for such tenor and in such amount as may be mutually agreed upon by the relevant Local Fronting Lender and Local Borrowing Subsidiary; provided, however, that in no event shall any Acceptance mature after the date which is 30 days prior to the Revolving Termination Date with respect to the Initial Revolving Facility (or such later date as the applicable Local Fronting Lender may agree in its sole discretion). (b) Unless the relevant Local Borrowing Subsidiary and Local Fronting Lender otherwise agree, the relevant Local Borrowing Subsidiary shall give to the relevant Local Fronting Lender not less than two Business Days’ prior written notice of its intent to borrow by way of Acceptances from any Local Fronting Lender which has agreed to accept and discount Drafts for the account of such Local Borrowing Subsidiary, which notice shall be accompanied by (i) a Draft which has been completed, executed and delivered by a duly authorized officer of such Local Borrowing Subsidiary and (ii) such other documents, instruments and certificates as such Local Fronting Lender reasonably may request; provided, however, that, after giving effect to the creation of such Acceptance, the Local Outstandings owing to such Local Fronting Lender shall not exceed the amount equal to its Currency Sublimit then in effect. On the requested borrowing date, the relevant Local Fronting Lender will accept such Draft and discount such accepted Draft in accordance with the provisions of Section 2.31(c). (c) Any Local Fronting Lender may, in its sole discretion, elect to discount Drafts of the relevant Local Borrowing Subsidiary on the date upon which such Local Fronting Lender accepts such Drafts by discounting such Draft at the rate per annum equal to the Local Rate (which may be a different rate than the Local Rate then payable on account of Local Loans in such Permitted Foreign Currency) then in effect plus the Applicable Margin then in effect for Local Rate Loans; provided, however, that, unless the relevant Local Fronting Lender and Local Borrowing Subsidiary otherwise agree, such discount shall be calculated by, first, discounting the aggregate face amount of such Draft at the rate per annum equal to the Local Rate then in effect and, second, discounting the result thereof at the rate per annum equal to the Applicable Margin then in effect for Local Rate Loans. Promptly following such discounting (and, in any event, on the date thereof), such Local Fronting Lender shall make available to such Local Borrowing Subsidiary the amount equal to the discounted face amount of such Draft in the manner in which such Local Fronting Lender makes available Local Loans pursuant to Section 2.5(b). (d) Each Local Borrowing Subsidiary hereby unconditionally agrees to pay to the relevant Local Fronting Lender the aggregate, undiscounted face amount of each Draft accepted by such Local Fronting Lender hereunder on the maturity date thereof (or on such earlier date upon which the obligations of such Local Borrowing Subsidiary under this Agreement shall become or shall have been declared due and payable pursuant to the terms and conditions of this Agreement, any Borrower may request a Borrowing by presenting drafts for acceptance and purchase as B/As by the Lender. Notwithstanding any other provision of this Agreement, to the extent the Lender is unable to accept drafts, the Lender may make an advance to the Borrower in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). ~~The principal~~ Interest shall accrue on any amount of owing pursuant to this Section 2.31(d) which is not paid when due (whether by scheduled maturity, mandatory prepayment, acceleration or otherwise) from the date such amount becomes due until paid in full at a ~~B/A Equivalent Loan shall be~~ fluctuating rate per annum equal to the ~~face amount of the applicable draft that~~ rate which would ~~otherwise~~ then be issued to the Lender in connection therewith, and the provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by the Lender. The Lender shall not be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears payable on any ~~B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid~~ overdue Local Rate Loans and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by such Local Borrowing Subsidiary upon demand by such Local Fronting Lender. (e) Each Revolving Lender hereby unconditionally and irrevocably agrees to purchase undivided participating interests in the ~~Borrower~~ Acceptances created by each Local Fronting Lender in accordance with the provisions of Section 2.32. (f) Notwithstanding anything to the ~~Lender in respect of each B/A accepted~~ contrary contained herein, the indefeasible prepayment by the ~~Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid~~ relevant Local Borrowing Subsidiary to the relevant Local Fronting Lender ~~at the time~~ of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount all or ~~otherwise dispose~~ a portion of any or all B/As accepted and purchased by it. 2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such B/As on the last day of the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As outstanding Acceptance shall be deemed to ~~have been converted on~~ constitute a prepayment of such portion of such Acceptance for all purposes hereunder, regardless of whether the ~~last day~~ relevant Local Fronting Lender has distributed such amount to the holder of the Contract Period into a Canadian Prime Loan in an amount equal to the face amount of such B/As and the Borrower shall be deemed to have irrevocably requested such conversion without the execution of a Borrowing Requestunderlying Draft. 2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due to the Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, the Borrowers shall have no further liability in respect of such B/A and the Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waived.

Appears in 1 contract

Samples: Asset Based Revolving Credit Agreement (Revlon Inc /De/)

Bankers’ Acceptances. ~~2.5.1 Subject to~~ (1) To facilitate the ~~terms and conditions of~~ procedures contemplated in this Agreement, ~~any~~ the Borrower ~~may request~~ irrevocably appoints each Lender from time to time as the attorney-in-fact of the Borrower to execute, endorse and deliver on behalf of the Borrower drafts (including book based forms and electronic paper) in the forms prescribed by such Lender (if such Lender is a ~~Borrowing~~ BA Lender) for bankers’ acceptances denominated in Cdn. Dollars (each such executed draft which has not yet been accepted by ~~presenting drafts~~ a Lender being referred to as a “Draft”) or non interest-bearing promissory notes of the Borrower in favour of such Lender (if such Lender is a Non BA Lender) (each such promissory note being referred to as a “BA Equivalent Note”). Each Bankers’ Acceptance and BA Equivalent Note executed and delivered by a Lender on behalf of the Borrower as provided for ~~acceptance~~ in this Section shall be as binding upon the Borrower as if it had been executed and ~~purchase~~ delivered by a duly authorized officer of the Borrower. (2) Notwithstanding Section 6.01(1), the Borrower will from time to time as ~~B/As~~ required by the ~~Lender. Notwithstanding any other provision of this Agreement,~~ applicable Lender provide to the ~~extent~~ Lenders an appropriate number of Drafts drawn by the Borrower upon each BA Lender and either payable to a clearing service (if such BA Lender is ~~unable to accept drafts, the Lender may make an advance~~ a member thereof) or payable to the Borrower and endorsed in ~~lieu~~ blank by the Borrower (if such BA Lender is not a member of ~~purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A~~ such clearing service) and an appropriate number of BA Equivalent ~~Loan”)~~Notes in favour of each Non BA Lender. The dates, the maturity dates and the principal amounts of all Drafts and BA Equivalent Notes delivered by the Borrower shall be left blank, to be completed by the Lenders as required by this Agreement. All such Drafts or BA Equivalent Notes shall be held by each Lender subject to the same degree of care as if they were such Lender’s own property kept at the place at which the Drafts or BA Equivalent Notes are ordinarily kept by such Lender. Each Lender, upon written request of the Borrower, will promptly advise the Borrower of the number and designation, if any, of the Drafts and BA Equivalent Notes then held by it. No Lender shall be liable for its failure to accept a Draft or purchase a BA Equivalent Note as required by this Agreement if the cause of such failure is, in whole or in part, due to the failure of the Borrower to provide on a timely basis appropriate Drafts or BA Equivalent Notes to the applicable Lender as may be requested by such Lender on a timely basis from time to time. (3) The Agent, promptly following receipt of a Drawdown Notice requesting Bankers’ Acceptances, shall (i) advise each BA Lender of the face amount and the term of the Draft to be accepted by it and (ii) advise each applicable Non BA Lender of the face amount and term of the BA Equivalent Note to be purchased by it. All Drafts to be accepted from time to time by each BA Lender that is a member of a clearing service shall be payable to such clearing service. The term of all Bankers’ Acceptances and BA Equivalent Notes issued pursuant to any Drawdown Notice, Conversion Notice or Rollover Notice shall be identical. Each Bankers’ Acceptance and BA Equivalent Note shall be dated the Drawdown Date on which it is issued and shall be for a term of 1, 2, 3 or 6 months, subject to availability, provided that in no event shall the term of a Bankers’ Acceptance or a BA Equivalent Note extend beyond the Maturity Date. The face amount of the Draft (or the aggregate face amount of the Drafts) to be accepted at any time by each Lender which is a ~~B/A Equivalent Loan shall be equal to~~ BA Lender, and the face amount of the BA Equivalent Notes to be purchased at any time by each Lender which is a Non BA Lender, shall be determined by the Agent based upon the amounts of their respective Commitments under the applicable ~~draft that would otherwise~~ Credit Facility. In determining a Lender’s Proportionate Share of a request for Bankers’ Acceptances, the Agent, in its sole discretion, shall be ~~issued~~ entitled to increase or decrease the face amount of any Draft, or BA Equivalent Note to the nearest $1,000. (4) Each BA Lender ~~in connection therewith~~shall complete and accept on the applicable Drawdown Date, Conversion Date or Rollover Date, a Draft having a face amount (or Drafts having the face amounts) and term advised by the Agent pursuant to subsection 6.01(3). Each applicable BA Lender shall purchase on the applicable Drawdown Date, Conversion Date or Rollover Date, the Bankers’ Acceptance accepted by it, for an aggregate price equal to the BA Discount Proceeds of such Bankers’ Acceptance. The Borrower shall ensure that there is delivered to each applicable BA Lender that is a member of a clearing service the completed Bankers’ Acceptances, and ~~the provisions of this Agreement shall apply to~~ such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The BA Lender is hereby authorized to release the Bankers’ Acceptance accepted by it to such clearing house upon receipt of confirmation that such clearing house holds such Bankers’ Acceptance for the account of such BA Lender. (5) Each Non BA Lender, in ~~accordance with~~ lieu of accepting Drafts or purchasing Bankers’ Acceptances on any Drawdown Date, Conversion Date or Rollover Date, will complete and purchase from the Borrower on such Drawdown Date, Conversion Date or Rollover Date, a ~~Borrowing Request relating~~ BA Equivalent Note in a face amount and for a term identical to the face 32 amount and term of the Draft which such Non BA Lender would have been required to accept on such Drawdown Date, Conversion Date or Rollover Date, if it were a ~~B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the~~ BA Lender~~; provided that the aggregate amount thereof is~~ , for a price equal to the ~~aggregate amount~~ BA Discount Proceeds of ~~B/As required to be accepted and purchased by the Lender~~such BA Equivalent Note. ~~The~~ Each Non BA Lender shall ~~not~~ be ~~liable for~~ entitled without charge to exchange any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided BA Equivalent Note held by it for ~~any reason, (c) accepted~~ two or ~~accepted~~ more BA Equivalent Notes of identical date and ~~purchased by it hereunder~~aggregate face amount, and ~~(d) cancelled at their respective maturities. On request by or on behalf of any Borrower,~~ the Borrower will execute and deliver to such Non BA Lender such replacement BA Equivalent Notes and such Non BA Lender shall ~~cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by~~ return the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds original BA Equivalent Note to the Borrower ~~in respect thereof. An Acceptance Fee~~ for cancellation. (6) The Borrower shall ~~be payable by the Borrower~~ pay to ~~the~~ each BA Lender in respect of each ~~B/A~~ Draft tendered by the Borrower to and accepted by ~~the Lender~~ such BA Lender, and ~~such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid~~ to ~~the Lender at the time of acceptance of such B/A by the~~ each Non BA Lender in ~~the event that the Borrower does not request the Lender~~ respect of each BA Equivalent Note tendered to ~~purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted~~ and purchased by itsuch Non BA Lender, as a condition of such acceptance or purchase, the BA Stamping Fee. ~~2.5.8 With respect to~~ (7) Upon acceptance of each ~~B/A Borrowing, at~~ Draft or ~~before 10:00 a.m. one Business Day before the last day~~ purchase of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Periodeach BA Equivalent Note, the Borrower shall ~~provide payment~~ pay to the applicable Lender ~~of an amount equal~~ the related fee specified in Section 6.01(6), and to facilitate payment such Lender shall be entitled to deduct and retain for its own account the ~~aggregate face~~ amount of such ~~B/As on~~ fee from the ~~last day~~ amount to be transferred by such Lender to the Agent for the account of the ~~Contract Period~~ Borrower pursuant to this Agreement in respect of the sale of the related Bankers’ Acceptance or of such ~~B/As.~~ BA Equivalent Note. (8) If the Agent determines in good faith, which determination shall be final, conclusive and binding upon the Borrower, and so notifies the Borrower, that there does not exist at the applicable time a normal market in Canada for the purchase and sale of bankers’ acceptances, any right of the Borrower ~~fails~~ to ~~make~~ require the Lenders to purchase Bankers’ Acceptances and BA Equivalent Notes under this Agreement shall be suspended until the Agent determines that such ~~payment~~market does exist and gives notice thereof to the Borrower and any Drawdown Notice, ~~such maturing B/As~~ Conversion Notice or Rollover Notice requesting Bankers’ Acceptances shall be deemed to ~~have been converted on~~ be a Drawdown Notice or Conversion Notice requesting a Prime Rate Advance in a similar aggregate principal amount. (9) On the ~~last day~~ date of maturity of each Bankers’ Acceptance or BA Equivalent Note, the Borrower shall pay to the Agent, for the account of the ~~Contract Period into a~~ holder of such Bankers’ Acceptance or BA Equivalent Note, in Canadian ~~Prime Loan in~~ Dollars an amount equal to the face amount of such ~~B/As and~~ Bankers’ Acceptance or BA Equivalent Note, as the case may be. The obligation of the Borrower to make such payment shall not be prejudiced by the fact that the holder of such Bankers’ Acceptance is the Lender that accepted such Bankers’ Acceptances. No days of grace shall be claimed by the Borrower for the payment at maturity of any Bankers’ Acceptance or BA Equivalent Note. If the Borrower does not make such payment, from the proceeds of an Advance obtained under this Agreement or otherwise, the amount of such required payment shall be deemed to ~~have irrevocably requested such conversion without the execution of~~ be a ~~Borrowing Request. 2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due~~ Prime Rate Advance to the Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower ~~who requested such B/A shall pay~~ from the Lender that ~~has~~ accepted ~~and~~ such Banker’s Acceptance or purchased such ~~B/A~~ BA Equivalent Note. (10) The signature of any duly authorized officer of the ~~full face amount~~ Borrower on a Draft or a BA Equivalent Note may be mechanically reproduced in facsimile, and all Drafts and BA Equivalent Notes bearing such facsimile signature shall be as binding upon the Borrower as if they had been manually signed by such officer, notwithstanding that such Person whose manual or facsimile signature appears on such Draft or BA Equivalent Note may no longer hold office at the date of such ~~B/A and, after such payment,~~ Draft or BA Equivalent Note or at the ~~Borrowers shall have no further liability in respect~~ date of acceptance of such ~~B/A and the~~ Draft by a BA Lender ~~shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If~~ or at any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waivedtime thereafter.

Appears in 1 contract

Samples: Credit Agreement (Sierra Wireless France SAS)

Bankers’ Acceptances. ~~2.5.1 Subject~~ (1) To facilitate the issuance of Bankers’ Acceptances pursuant to ~~the terms and conditions of~~ this Agreement, ~~any~~ the Borrower ~~may request~~ irrevocably appoints each Lender from time to time as the attorney-in-fact of the Borrower to execute, endorse and deliver on behalf of the Borrower drafts in the forms prescribed by such Lender (if such Lender is a ~~Borrowing~~ BA Lender) for bankers’ acceptances denominated in Canadian Dollars (each such executed draft that has not yet been accepted by ~~presenting drafts~~ a Lender being referred to as a “Draft”) or non interest-bearing promissory notes of the Borrower in favour of such Lender (if such Lender is a Non BA Lender) (each such promissory note being referred to as a “BA Equivalent Note”). Each Bankers’ Acceptance and BA Equivalent Note executed and delivered by a Lender on behalf of the Borrower as provided for ~~acceptance~~ in this Section 5.01 will be as binding upon the Borrower as if it had been executed and ~~purchase~~ delivered by a duly authorized officer of the Borrower. (2) Notwithstanding Section 5.01(1), the Borrower will from time to time as ~~B/As~~ required by the ~~Lender. Notwithstanding any other provision~~ applicable Lender provide to each BA Lender an appropriate number of ~~this Agreement,~~ Drafts drawn by the Borrower upon such BA Lender and either payable to ~~the extent the~~ a clearing service (if such BA Lender is ~~unable to accept drafts, the Lender may make an advance~~ a member thereof) or payable to the Borrower and endorsed in ~~lieu~~ blank by the Borrower (if such BA Lender is not a member of ~~purchasing a draft that it would otherwise be required to purchase hereunder~~ such clearing service), and (~~a “B/A~~ ii) each Non BA Lender an appropriate number of BA Equivalent ~~Loan”)~~Notes in favour of such Non BA Lender. The dates, maturity dates and principal amounts of all Drafts and BA Equivalent Notes delivered by the Borrower must be left blank, to be completed by the Lenders as required by this Agreement. Each Lender to which a Draft or BA Equivalent Note has been delivered by the Borrower will exercise the same degree of care in the custody of such Draft or BA Equivalent Note as such Lender would exercise with respect to its own property kept at the place at which the Drafts or BA Equivalent Notes are ordinarily kept by such Lender. Each Lender, upon the written request of the Borrower, will promptly advise the Borrower of the number and designation, if any, of the Drafts and BA Equivalent Notes then held by it. No Lender will be liable for its failure to accept a Draft or purchase a BA Equivalent Note as required by this Agreement if the cause of such failure is, in whole or in part, due to the failure of the Borrower to provide on a timely basis appropriate Drafts or BA Equivalent Notes to the applicable Lender as requested by such Lender on a timely basis. (3) The Administrative Agent, promptly following receipt of a Drawdown Notice requesting Bankers’ Acceptances, will (i) advise each BA Lender of the face amount and the term of the Draft to be accepted by it, and (ii) advise each applicable Non BA Lender of the face amount and term of the BA Equivalent Note to be purchased by it. All Drafts to be accepted from time to time by each BA Lender that is a member of a clearing service will be payable to such clearing service. The term of all Bankers’ Acceptances and BA Equivalent Notes issued pursuant to any Drawdown Notice must be identical. Each Bankers’ Acceptance and BA Equivalent Note must be dated the Drawdown Date on which it is issued and will be for a term of one, two, three or six months, provided that in no event will the term of a Bankers’ Acceptance or a BA Equivalent Note extend beyond the Maturity Date. The face amount of the Draft (or the aggregate face amount of the Drafts) to be accepted at any time by each Lender that is a ~~B/A Equivalent Loan shall be equal to~~ BA Lender, and the face amount of the BA Equivalent Notes to be purchased at any time by each Lender that is a Non BA Lender, will be determined by the Administrative Agent based upon the amounts of their respective Commitments under the Credit Facility. (4) Each BA Lender will complete and accept on the applicable ~~draft that would otherwise be issued~~ Drawdown Date a Draft having a face amount (or Drafts having the face amounts) and term advised by the Administrative Agent pursuant to Section 5.01(3) . Each applicable BA Lender will purchase on the applicable Drawdown Date the Bankers’ Acceptance or Bankers’ Acceptances accepted by it, for an aggregate price equal to the ~~Lender in connection therewith, and the provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of~~ BA Discount Proceeds ~~as provided for in Section 2.5.6 at the time the draft would have been issued to~~ of such ~~Lender~~Bankers’ Acceptance (or Bankers’ Acceptances). The ~~Borrowers acknowledge~~ Borrower will ensure that ~~BPEG US Inc. cannot accept drafts~~ there is delivered to each applicable BA Lender that is a member of a clearing service, and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such ~~Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The~~ BA Lender is hereby authorized to release, the Bankers’ Acceptance accepted by it to such clearing service upon receipt of confirmation that such clearing service holds such Bankers’ Acceptance for the account of such BA Lender. (5) Each Non BA Lender, in ~~accordance with~~ lieu of accepting Drafts or purchasing Bankers’ Acceptances on any Drawdown Date, will complete and purchase from the Borrower on such Drawdown Date a ~~Borrowing Request relating~~ BA Equivalent Note in a face amount and for a term identical to the face amount and term of the Draft or Drafts which such Non BA Lender would have been required to accept on such Drawdown Date if it were a ~~B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the~~ BA Lender~~; provided that the aggregate amount thereof is~~ , for a price equal to the ~~aggregate amount~~ BA Discount Proceeds of ~~B/As required~~ such BA Equivalent Note (determined as if such BA Equivalent Note were a Bankers’ Acceptance). Each Non BA Lender will be entitled, without charge, to ~~be accepted and purchased by the Lender. The Lender shall not be liable for~~ exchange any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided BA Equivalent Note held by it for ~~any reason, (c) accepted~~ two or ~~accepted~~ more BA Equivalent Notes of identical date and ~~purchased by it hereunder~~aggregate face amount, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at will execute and deliver to such Non BA Lender such replacement BA Equivalent Notes and such Non BA Lender will return the ~~Discount Rate and shall pay the Discount Proceeds~~ original BA Equivalent Note to the Borrower ~~in respect thereof. An Acceptance Fee shall be payable by the~~ for cancellation. (6) The Borrower will pay to ~~the~~ each BA Lender in respect of each ~~B/A~~ Draft tendered by the Borrower to and accepted by ~~the Lender~~ such BA Lender, and ~~such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid~~ to ~~the Lender at the time of acceptance of such B/A by the~~ each Non BA Lender in ~~the event that the Borrower does not request the Lender~~ respect of each BA Equivalent Note tendered to ~~purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted~~ and purchased by itsuch Non BA Lender, as a condition of such acceptance or purchase, the BA Stamping Fee. A Lender is entitled to deduct and retain for its own account the amount of such fee from the amount to be transferred by such Lender to the Administrative Agent for the account of the Borrower pursuant to this Agreement in respect of the sale of the related Bankers’ Acceptance or of such BA Equivalent Note. ~~2.5.8 With respect to~~ (7) On the date of maturity of each ~~B/A Borrowing, at~~ Bankers’ Acceptance or ~~before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As~~BA Equivalent Note, the Borrower ~~that requested~~ will pay to the ~~B/A shall notify~~ Administrative Agent, for the ~~Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day~~ account of the ~~Contract Period to provide for the payment~~ holder of such ~~maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period~~Bankers’ Acceptance or BA Equivalent Note, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such B/As on the last day of the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As shall be deemed to have been converted on the last day of the Contract Period into a in Canadian ~~Prime Loan in~~ Dollars an amount equal to the face amount of such ~~B/As and~~ Bankers’ Acceptance or BA Equivalent Note, as the case may be. The obligation of the Borrower ~~shall~~ to make such payment will not be prejudiced by the fact that the holder of such Bankers’ Acceptance is the Lender that accepted such Bankers’ Acceptances. No days of grace may be claimed by the Borrower for the payment at maturity of any Bankers’ Acceptance or BA Equivalent Note. If the Borrower does not make such payment from the proceeds of a Loan obtained under this Agreement or otherwise, the amount of such required payment will be deemed to ~~have irrevocably requested such conversion without the execution of~~ be a ~~Borrowing Request. 2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due~~ Prime Rate Loan to the Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower ~~who requested such B/A shall pay~~ from the Lender that ~~has~~ accepted ~~and~~ such Banker’s Acceptance or purchased such ~~B/A~~ BA Equivalent Note. (8) The signature of any duly authorized officer of the ~~full face amount~~ Borrower on a Draft or a BA Equivalent Note may be mechanically reproduced in facsimile, and all Drafts and BA Equivalent Notes bearing such facsimile signature will be as binding upon the Borrower as if they had been manually signed by such officer, notwithstanding that such Person whose manual or facsimile signature appears on such Draft or BA Equivalent Note may no longer hold office at the date of such ~~B/A and, after such payment,~~ Draft or BA Equivalent Note or at the ~~Borrowers shall have no further liability in respect~~ date of acceptance of such ~~B/A and the~~ Draft by a BA Lender ~~shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If~~ or at any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waivedtime thereafter.

Appears in 1 contract

Samples: Credit Agreement (Linens N Things Inc)

Bankers’ Acceptances. ~~2.5.1 Subject~~ (a) The Administrative Agent, promptly following receipt of a Notice of Borrowing or Notice of Continuation, requesting BA Loans, shall advise each applicable Lender of the face or principal amount and term of each BA Loan to ~~the terms~~ be accepted (and ~~conditions of this Agreement, any Borrower may request a Borrowing~~ purchased) or advanced by presenting drafts for acceptance and purchase as B/As by the Lender. Notwithstanding any other provision of this Agreement, to the extent the Lender is unable to accept drafts, the Lender may make an advance to the Borrower in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”)it. The aggregate face or principal amount of BA Loans to be accepted or advanced by a ~~B/A Equivalent Loan~~ Lender shall be ~~equal~~ determined by the Administrative Agent by reference to that Lender’s applicable pro rata portion of the issue or advance of BA Loans, except that the aggregate face amount of Bankers’ Acceptances to be accepted by the applicable Lenders shall be reduced by the Administrative Agent in its sole discretion as may be necessary to ensure that the face amount of the applicable draft that would otherwise be issued to the Lender in connection therewith, and the provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the BorrowersBankers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by the Lender. The Lender shall not be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A Acceptance to be accepted by ~~the~~ each applicable Lender ~~shall~~ would be ~~in a minimum aggregate amount of Cdn$500,000 and shall be~~ $100,000 or a whole multiple thereof, and the balance of ~~Cdn$50,000~~the requested Borrowing shall be advanced or continued by way of Prime Loans. ~~2.5.6 Upon acceptance~~ (b) On the date specified in a Notice of Borrowing or Notice of Continuation on which Bankers’ Acceptances are to be accepted, the Administrative Agent shall advise the Borrower as to the Administrative Agent’s determination of the BA Discount Rate for the BA Loans to be purchased or advanced, as the case may be. (c) The Borrower shall sell and each Lender shall purchase the Bankers’ Acceptance accepted by it at the applicable BA Discount Rate. The Lenders shall provide the Administrative Agent, for the account of the Borrower, the BA Discount Proceeds less a ~~B/A~~ fee (the “Stamping Fee”) payable by the ~~Lender,~~ Borrower on the ~~Lender unless otherwise requested by a Borrower, shall purchase,~~ face amount or ~~arrange~~ principal amount of the BA Loan for its term at the ~~purchase of, each B/A from~~ Stamping Fee Rate. (d) In the event the Borrower at requests a continuation of BA Loans for a further Interest Period, concurrent with the ~~Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable~~ payment by the Borrower to the ~~Lender in respect~~ Administrative Agent of ~~each B/A accepted by~~ the ~~Lender~~ face or principal amount of such BA Loans or the portion thereof to be replaced (the “Maturing Amount”) (or arrangements satisfactory to the Administrative Agent being effected to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the Maturing Amount and the Borrower concurrently paying to the Administrative Agent any positive difference between the Maturing Amount and such ~~Acceptance Fee~~ BA Discount Proceeds), each Lender shall ~~either be set off against~~ accept and purchase (or advance in the ~~Discount Proceeds payable by~~ case of a BA Equivalent Loan) on the ~~Lender under this Section 2.5.6 or paid~~ terms herein its pro rata portion of Drafts having an aggregate face amount equal to the ~~Lender at the time of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As~~Maturing Amount. ~~2.5.7 The~~ (e) Each Lender may ~~at any time and~~ from time to time hold, sell, rediscount or otherwise dispose of any or all ~~B/As~~ Bankers’ Acceptances accepted and purchased by it. ~~2.5.8 With respect~~ (f) In order to ~~each B/A Borrowing, at or before 10:00 a.m. one Business Day before~~ facilitate the ~~last day~~ issuance of ~~the Contract Period of such B/As~~Bankers’ Acceptances pursuant to this Agreement, the Borrower ~~that requested~~ hereby authorizes each of the ~~B/A shall notify~~ Lenders, and appoints each of the ~~Lender~~ Lenders as the Borrower’s attorney, to complete, sign and endorse drafts or depository bills (as defined in the Depository Bills and Notes Act (Canada) (each such executed draft or xxxx being herein referred to as a “Draft”) on its behalf in handwritten form or by ~~irrevocable written notice~~facsimile or mechanical signature or otherwise in accordance with the applicable Notice of Borrowing or Notice of Continuation and, ~~followed~~ once so completed, signed and endorsed to accept them as Bankers’ Acceptances under this Agreement and then if applicable, purchase, discount or negotiate such Bankers’ Acceptances in accordance with the provisions of this Agreement. Drafts so completed, signed, endorsed and negotiated on behalf of the Borrower by a ~~notice of rollover on the same day, if~~ Lender shall bind the Borrower ~~intends to issue B/As on such last day~~ as fully and effectively as if so performed by an Authorized Officer of the ~~Contract Period to provide for the payment~~ Borrower. Each draft of ~~such maturing B/As. If the Borrower fails to so notify the~~ a Bankers’ Acceptance completed, signed or endorsed by a Lender ~~of its intention to issue B/As on such last day of the Contract Period, the Borrower~~ shall ~~provide payment to the Lender of an amount equal to the aggregate face amount of such B/As~~ mature on the last day of the ~~Contract Period~~ term thereof. All Bankers’ Acceptances to be accepted by a particular Lender shall, at the option of such ~~B/As~~Lender, be issued in the form of depository bills made payable originally to and deposited with The Depository for Securities Limited pursuant to the Depository Bills and Notes Act (Canada). (g) Any Drafts to be used for Bankers’ Acceptances which are held by a Lender shall be held in safekeeping with the same degree of care as if they were such Lender’s own property being kept at the place at which they are to be held. If The Borrower may, by written notice to the ~~Borrower fails~~ Administrative Agent, designate persons other than Authorized Officers authorized to ~~make such payment~~give the Administrative Agent instructions regarding the manner in which Drafts are to be completed and the times at which they are to be issued; provided however that receipt by the Administrative Agent of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation into, ~~such maturing B/As~~ Bankers’ Acceptances shall be deemed to ~~have been converted on the last day~~ be sufficient authority from Authorized Officers or such designated persons for each of the ~~Contract Period into a Canadian Prime Loan~~ Lenders to complete, and issue Drafts in ~~an amount equal to~~ accordance with such notice. None of the ~~face amount~~ Administrative Agent or the Lenders nor any of ~~such B/As and the Borrower~~ their respective directors, officers, employees or representatives shall be ~~deemed~~ liable for any action taken or omitted to ~~have irrevocably requested such conversion without the execution~~ be taken by any of them under this Section 2.14(g) except for their own respective gross negligence or wilful misconduct as determined by a final judgment of a ~~Borrowing Request~~court of competent jurisdiction. ~~2.5.9~~ (h) The ~~Borrowers waive~~ Borrower waives presentment for payment and any other defence to the payment of any amounts due to ~~the~~ a Lender in respect of a ~~B/A~~ Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason of ~~such B/A~~ the Bankers’ Acceptance being held, at the maturity thereof, by the Lender in its own ~~right,~~ right and the ~~Borrowers agree~~ Borrower agrees not to claim any days of grace if the ~~Lender,~~ Lender as ~~holder,~~ holder sues the ~~Borrowers~~ Borrower on the ~~B/A~~ Bankers’ Acceptance for payment of the amount payable by the ~~Borrowers~~ Borrower thereunder~~. On~~ . (i) Whenever the ~~last day~~ Borrower requests a NRT Loan or Revolving Loan under this Agreement by way of Bankers’ Acceptances, each Non-Acceptance Lender shall, in lieu of accepting a Bankers’ Acceptance, make a BA Equivalent Loan by way of Discount Note in an amount equal to the Non-Acceptance Lender’s pro rata portion of the ~~Contract Period~~ BA Loan. All terms of this Agreement applicable to Bankers’ Acceptances shall apply equally to Discount Notes evidencing BA Equivalent Loans with such changes as may in the context be necessary. For greater certainty: (i) the term of a ~~B/A, or such earlier~~ Discount Note shall be the same as the Interest Period for Bankers’ Acceptances accepted on the same date ~~as may be required or permitted pursuant to~~ of the provisions of this Agreement, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, the Borrowers shall have no further liability Borrowing in respect of ~~such B/A~~ the same BA Loan; (ii) a stamping fee will be payable in respect of a Discount Note and ~~the Lender~~ shall be ~~entitled to all benefits of,~~ calculated at the same rate and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the ~~name~~ same manner as the Stamping Fee in respect of a Bankers’ Acceptance; and (iii) the ~~Lender, an amount in cash~~ proceeds from a BA Equivalent Loan shall be equal to the ~~face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance~~ BA Discount Proceeds of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waivedDiscount Note.

Appears in 1 contract

Samples: Credit Agreement

Bankers’ Acceptances. ~~2.5.1 Subject~~ (a) Notwithstanding anything to the contrary contained herein, any Local Fronting Lender may agree (in its sole discretion from time to time) to create bankers' acceptances under its Currency Sublimit by way of the acceptance and discount of Drafts (the "Acceptances") pursuant to this Section 6.9; provided, however, that no Local Fronting Lender shall have any obligation to create and/or discount Acceptances, regardless of any prior practice of doing so for the account of such Local Borrowing Subsidiary. Any Acceptances created pursuant to this Section 6.9 shall be denominated in the Denomination Currency for the relevant Local Fronting Lender (and not in Dollars), and shall be for such tenor and in such amount as may be mutually agreed upon by the relevant Local Fronting Lender and Local Borrowing Subsidiary; provided, however, that in no event shall any Acceptance mature after the date which is 30 days prior to the Multi-Currency Termination Date. (b) Unless the relevant Local Borrowing Subsidiary and Local Fronting Lender otherwise agree, the relevant Local Borrowing Subsidiary shall give to the relevant Local Fronting Lender not less than two Business Days' prior written notice of its intent to borrow by way of Acceptances from any Local Fronting Lender which has agreed to accept and discount Drafts for the account of such Local Borrowing Subsidiary, which notice shall be accompanied by (i) a Draft which has been completed, executed and delivered by a duly authorized officer of such Local Borrowing Subsidiary and (ii) such other documents, instruments and certificates as such Local Fronting Lender reasonably may request; provided, however, that, after giving effect to the creation of such Acceptance, the Local Outstandings owing to such Local Fronting Lender shall not exceed the amount equal to its Currency Sublimit then in effect. On the requested borrowing date, the relevant Local Fronting Lender will accept such Draft and discount such accepted Draft in accordance with the provisions of Section 6.9(c). (c) Any Local Fronting Lender may, in its sole discretion, elect to discount Drafts of the relevant Local Borrowing Subsidiary on the date upon which such Local Fronting Lender accepts such Drafts by discounting such Draft at the rate per annum equal to the Local Rate (which may be a different rate than the Local Rate then payable on account of Local Loans in such Denomination Currency) then in effect plus the Applicable Margin then in effect for Local Rate Loans; provided, however, that, unless the relevant Local Fronting Lender and Local Borrowing Subsidiary otherwise agree, such discount shall be calculated by, first, discounting the aggregate face amount of such Draft at the rate per annum equal to the Local Rate then in effect and, second, discounting the result thereof at the rate per annum equal to the Applicable Margin then in effect for Local Rate Loans. Promptly following such discounting (and, in any event, on the date thereof), such Local Fronting Lender shall make available to such Local Borrowing Subsidiary the amount equal to the discounted face amount of such Draft in the manner in which such Local Fronting Lender makes available Local Loans pursuant to Section 6.3. (d) Each Local Borrowing Subsidiary hereby unconditionally agrees to pay to the relevant Local Fronting Lender the aggregate, undiscounted face amount of each Draft accepted by such Local Fronting Lender hereunder on the maturity date thereof (or on such earlier date upon which the obligations of such Local Borrowing Subsidiary under this Agreement shall become or shall have been declared due and payable pursuant to the terms and conditions of this Agreement, any Borrower may request a Borrowing by presenting drafts for acceptance and purchase as B/As by the Lender. Notwithstanding any other provision of this Agreement, to the extent the Lender is unable to accept drafts, the Lender may make an advance to the Borrower in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). ~~The principal~~ Interest shall accrue on any amount of owing pursuant to this Section 6.9(d) which is not paid when due (whether by scheduled maturity, mandatory prepayment, acceleration or otherwise) from the date such amount becomes due until paid in full at a ~~B/A Equivalent Loan shall be~~ fluctuating rate per annum equal to the ~~face amount of the applicable draft that~~ rate which would ~~otherwise~~ then be issued to the Lender in connection therewith, and the provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by the Lender. The Lender shall not be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears payable on any ~~B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid~~ overdue Local Rate Loans and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by such Local Borrowing Subsidiary upon demand by such Local Fronting Lender. (e) Each Multi-Currency Lender hereby unconditionally and irrevocably agrees to purchase undivided participating interests in the ~~Borrower~~ Acceptances created by each Local Fronting Lender in accordance with the provisions of Section 6.4. (f) Notwithstanding anything to the ~~Lender in respect of each B/A accepted~~ contrary contained herein, the indefeasible prepayment by the ~~Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid~~ relevant Local Borrowing Subsidiary to the relevant Local Fronting Lender ~~at the time~~ of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount all or ~~otherwise dispose~~ a portion of any or all B/As accepted and purchased by it. 2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such B/As on the last day of the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As outstanding Acceptance shall be deemed to ~~have been converted on~~ constitute a prepayment of such portion of such Acceptance for all purposes hereunder, regardless of whether the ~~last day~~ relevant Local Fronting Lender has distributed such amount to the holder of the Contract Period into a Canadian Prime Loan in an amount equal to the face amount of such B/As and the Borrower shall be deemed to have irrevocably requested such conversion without the execution of a Borrowing Requestunderlying Draft. 2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due to the Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, the Borrowers shall have no further liability in respect of such B/A and the Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waived.

Appears in 1 contract

Samples: Credit Agreement (Revlon Consumer Products Corp)

Bankers’ Acceptances. ~~2.5.1 Subject to the terms and conditions of this Agreement, any Borrower~~ (a) The Borrowers may ~~request a Borrowing by presenting drafts~~ issue Bankers’ Acceptances denominated in Canadian Dollars for acceptance and purchase ~~as B/As~~ by the ~~Lender. Notwithstanding any other provision of this Agreement, to the extent the Lender is unable to accept drafts, the Lender may make an advance to the Borrower~~ Global Revolving Lenders in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). The principal amount of a B/A Equivalent Loan shall be equal to the face amount of the applicable draft that would otherwise be issued to the Lender in connection therewith, and accordance with the provisions of Section 2.01, Section 2.03 and this ~~Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in~~ Section ~~2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans~~2.23. ~~2.5.2~~ (b) Each Bankers’ Acceptance shall have a Contract Period of approximately 30, 60 or 90 days or such other terms as available. No Contract Period ~~with respect to a B/A to be accepted and purchased under the Credit Facility~~ shall extend beyond the applicable Revolving Credit Maturity Date. If such Contract Period would otherwise end on a day that is not a Business Day, such Contract Period shall end on the next preceding day that is a Business Day. ~~2.5.3~~ (c) On each Borrowing date on which Bankers’ Acceptances are to be accepted, the Administrative Agent shall advise the Borrower Agent as to the Administrative Agent’s determination of the applicable Discount Rate for the Bankers’ Acceptances which any of the Global Revolving Lenders have agreed to purchase. (d) Each Global Revolving Lender agrees to purchase a Bankers’ Acceptance accepted by it. The applicable Borrower shall sell, and such Global Revolving Lender shall purchase, the Bankers’ Acceptance at the applicable Discount Rate. Such Global Revolving Lender shall provide to the Canadian Funding Office the Discount Proceeds less the Acceptance Fee payable by the applicable Borrower with respect to such Bankers’ Acceptance. Such proceeds will then be made available to the applicable Borrower by the Administrative Agent crediting an account as directed by such Borrower with the aggregate of the amounts made available to the Administrative Agent by such Global Revolving Lenders and in like funds as received by the Administrative Agent. (e) Each Global Revolving Lender may from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances accepted and purchased by it. (f) To facilitate ~~availment~~ Borrowings denominated in Canadian Dollars under the Global Revolving Facility to the Borrowers by way of B/~~A Borrowings (other than B/A Equivalent Loans)~~As, the Borrowers hereby appoint each ~~Borrower hereby appoints the~~ Global Revolving Lender as its attorney to sign and endorse on its ~~behalf (in accordance with a Borrowing Request relating to a B/A Borrowing)~~behalf, in handwriting or by facsimile or mechanical signature as and when deemed necessary by ~~the~~ such Global Revolving Lender, blank forms of B/As in reasonably acceptable to the ~~form requested by the Lender~~Borrower Agent. In this respect, it is ~~the Borrowers’~~ each Global Revolving Lender’s responsibility to ~~furnish the Lender with~~ maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As required to be accepted and purchased by any Global Revolving Lender and which are signed and/or endorsed on its behalf by ~~the~~ a Global Revolving Lender ~~on behalf of such Borrower~~ shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. ~~The~~ Each Global Revolving Lender is hereby authorized ~~(in accordance with a Borrowing Request relating to a B/A Borrowing)~~ to issue such B/As endorsed in blank in such face amounts as may be determined by ~~the~~ such Global Revolving Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by ~~the~~ such Global Revolving Lender. ~~The~~ No Global Revolving Lender shall ~~not~~ be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except ~~for~~ the gross negligence or ~~wilful~~ willful misconduct of ~~the~~ such Global Revolving Lender or its respective officers, employees, agents or representatives. ~~The~~ On request by the Borrower Agent, each Global Revolving Lender shall cancel all forms of B/As which have been pre-signed or pre-endorsed by or on behalf of such Borrower and which are held by such Global Revolving Lender and have not yet been issued in accordance herewith. Each Global Revolving Lender shall maintain a record with respect to B/As ~~(a) received~~ held by it in blank hereunder, ~~(b)~~ voided by it for any reason, ~~(c) accepted or~~ accepted and purchased by it hereunder, and ~~(d)~~ cancelled at their respective maturities. ~~On request by or on behalf of any Borrower,~~ Each Global Revolving Lender agrees to provide such records to the ~~Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such~~ Borrower ~~and which are held by~~ Agent at the ~~Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice~~Borrowers’ expense upon request. ~~2.5.4~~ (g) Drafts of drawn by a Borrower to be accepted as ~~B/As hereunder~~ Bankers’ Acceptances shall be signed ~~as set forth in this~~ by a duly authorized officer or officers of such Borrower or by its attorneys, including attorneys appointed pursuant to Section ~~2.5~~2.23(f) above. Notwithstanding that any ~~person~~ Person whose signature appears on any ~~B/A~~ Bankers’ Acceptance may no longer be an authorized signatory for ~~the Lender or~~ a ~~Borrower~~ Borrower, as applicable, at the ~~date~~ time of issuance of a ~~B/A~~Bankers’ Acceptance, ~~such~~ that signature shall nevertheless be valid and sufficient for all purposes as if ~~such~~ the authority had remained in force at the time of ~~such~~ issuance and any ~~such B/A~~ Bankers’ Acceptance so signed shall be binding on such Borrower. (h) The Administrative Agent, promptly following receipt of a ~~Borrower who requested~~ notice of Borrowing, continuation or conversion by way of Bankers’ Acceptances, shall advise the applicable Global Revolving Lenders of the notice and shall advise each such ~~B/A. 2.5.5 In~~ Global Revolving Lender of the ~~case~~ face amount of ~~B/A Borrowings~~Bankers’ Acceptances to be accepted by it and the applicable Contract Period (which shall be identical for all Global Revolving Lenders). The aggregate face amount of Bankers’ Acceptances to be accepted by a Global Revolving Lender shall be determined by the Administrative Agent by reference to such Global Revolving Lender’s Applicable Percentage of the issue of Bankers’ Acceptances, except that, if the face amount of a Bankers’ Acceptance which would otherwise be accepted by a Global Revolving Lender would not be CAD$100,000, or a whole multiple thereof, the face amount ~~of each B/A to~~ shall be ~~accepted~~ increased or reduced by the ~~Lender shall be~~ Administrative Agent in ~~a minimum aggregate amount of Cdn$500,000 and shall be a~~ its sole discretion to CAD$l00,000, or the nearest whole multiple of ~~Cdn$50,000~~that amount, as appropriate. ~~2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the~~ (i) Each Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by the Borrower to the Lender in respect of each B/A accepted by the Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid to the Lender at the time of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it. 2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such B/As on the last day of the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As shall be deemed to have been converted on the last day of the Contract Period into a Canadian Prime Loan in an amount equal to the face amount of such B/As and the Borrower shall be deemed to have irrevocably requested such conversion without the execution of a Borrowing Request. 2.5.9 The Borrowers waive waives presentment for payment and any other ~~defence~~ defense to payment of any amounts due to ~~the~~ a Global Revolving Lender in respect of a ~~B/A~~ Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason of ~~such B/A~~ the Bankers’ Acceptance being held, at the maturity thereof, by ~~the~~ such Global Revolving Lender in its own right~~, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder~~. On the ~~last day of the Contract Period~~ specified maturity date of a B/A, or ~~such earlier~~ the date ~~as may be required or permitted pursuant to the provisions~~ of any prepayment thereof in accordance with this Agreement, if earlier, the applicable Borrower ~~who requested such B/A~~ shall pay ~~the~~ to such Global Revolving Lender that has accepted ~~and purchased~~ such B/A the full face amount of such B/A ~~and~~(or shall make provision for payment by way of conversion or continuation in accordance with Section 2.07) in full and absolute satisfaction of its obligations with respect to such B/A, and after such payment, the ~~Borrowers~~ applicable Borrower shall have no further liability in respect of such B/A (except to the extent that any such payment is rescinded or reclaimed by operation of law or otherwise) and ~~the~~ such Global Revolving Lender shall be entitled to all benefits of, and will make and otherwise be responsible for all payments due to the redeeming holder or any third parties under, such B/A. ~~2.5.10 If any Event~~ (j) Whenever a Borrower requests a borrowing by way of ~~Default shall occur and be continuing~~Bankers’ Acceptances, ~~the Borrowers shall deposit in an interest bearing account with the Lender~~each Non BA Lender shall, in lieu of accepting and purchasing any B/As, make a Loan (a “BA Equivalent Loan”) to such Borrower in the ~~name~~ amount and for the same term as each Draft which such Lender would otherwise have been required to accept and purchase hereunder. Each such Lender will provide to the Administrative Agent the amount of Discount Proceeds of such BA Equivalent Loan for the account of the ~~Lender~~applicable Borrower in the same manner as such Lender would have provided the Discount Proceeds in respect of the Draft which such Lender would otherwise have been required to accept and purchase hereunder. Each such BA Equivalent Loan will bear interest at the same rate that would result if such Lender had accepted (and been paid an acceptance fee) and purchased (on a discounted basis) a B/A for the relevant Contract Period (it being the intention of the parties that each such BA Equivalent Loan shall have the same economic consequences for the relevant Lenders and the applicable Borrower as the B/A that such BA Equivalent Loan replaces). All such interest shall be paid in advance on the date such BA Equivalent Loan is made, an and will be deducted from the principal amount of such BA Equivalent Loan in ~~cash equal to~~ the same manner in which the discounted portion of a B/A would be deducted from the face amount of the B/A. Subject to the repayment requirements of this Agreement, on the last day of the relevant Contract Period for such BA Equivalent Loan, the applicable Borrower shall be entitled to convert each such BA Equivalent Loan into another type of Loan, or to roll over each such BA Equivalent Loan into another BA Equivalent Loan, all in accordance with the applicable provisions of this Agreement. Each Non BA Lender may, at its discretion, request in writing to the Administrative Agent and the applicable Borrower that BA Equivalent Loans made by it shall be evidenced by Discount Notes. (k) For greater certainty, all provisions of this Agreement that are applicable to B/As ~~then outstanding. Such deposit~~ shall also be ~~held by the Lender as collateral for the payment~~ applicable, mutatis mutandis, to BA Equivalent Loans, and ~~performance~~ notwithstanding any other provision of ~~the obligations of the Borrowers under~~ this Agreement~~. The Lender shall have exclusive dominion and control~~, ~~including the exclusive right~~ all references to principal amounts or any repayment or prepayment of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender any Loans that are applicable to ~~reimburse the Lender for payments made under~~ B/As ~~for which it has not been reimbursed and,~~ or BA Drawings shall be deemed to refer to the ~~extent not so applied, if~~ full face amount thereof in the ~~maturity~~ case of B/As and to the principal amount of any portion thereof consisting of BA Equivalent Loans. As set out in the definition of “Bankers’ Acceptances,” that term includes Discount Notes and all terms of this Agreement applicable to Bankers’ Acceptances (including the provisions of Section 2.23(f) relating to their execution by the Global Revolving Lenders under power of attorney) shall apply equally to Discount Notes evidencing BA Equivalent Loans with such changes as may in the context be necessary. For greater certainty: (i) the term of a Discount Note shall be the same as the Contract Period for Bankers’ Acceptances accepted and purchased on the same Borrowing date in respect of the ~~Loans has been accelerated~~same borrowing; (ii) an acceptance fee will be payable in respect of a Discount Note and shall be calculated at the same rate and in the same manner as the Acceptance Fee in respect of a Bankers’ Acceptance; and (iii) the Discount Rate applicable to a Discount Note shall be the Discount Rate applicable to Bankers’ Acceptances accepted by a Global Revolving Lender that is not a Schedule I Lender in accordance with the definition of “Discount Rate” on the same Borrowing date or date of continuation or conversion, ~~be applied to satisfy other obligations~~ as the case may be, in respect of the ~~Borrowers~~ same borrowing for the relevant Contract Period. (l) At the option of the applicable Borrower and any Global Revolving Lender, Bankers’ Acceptances under this ~~Agreement~~Agreement to be accepted by such Global Revolving Lender may be issued in the form of depository bills for deposit with The Canadian Depository for Securities Limited pursuant to the Depository Bills and Notes Act (Canada). If All depository bills so issued shall be governed by the ~~Borrowers are required~~ provisions of this Section 2.23. (m) Upon acceptance of a Bankers’ Acceptance by a Global Revolving Lender, the applicable Borrower shall pay to ~~provide an~~ the Administrative Agent on behalf of such Global Revolving Lender a fee (the “Acceptance Fee”) calculated on the face amount of ~~cash collateral hereunder as~~ the Bankers’ Acceptance at a ~~result~~ rate per annum equal to the Applicable Rate on the basis of the ~~occurrence~~ number of ~~an Event of Default,~~ days in the Contract Period for such ~~amount (~~Bankers’ Acceptance. Any adjustment to the ~~extent not applied~~ Acceptance Fee (including any adjustment as ~~aforesaid~~necessary to reflect the operation of Section 2.12(d)) shall be ~~returned~~ computed based on the number of days remaining in the Contract Period of such Bankers’ Acceptances from and including the effective date of any change in the Applicable Rate. Any increase in such Acceptance Fee shall be paid by the applicable Borrower to the ~~Borrowers within three Business Days after all Events~~ Administrative Agent on behalf of ~~Default have been cured or waived~~the Global Revolving Lenders on the last day of the Contract Period of the relevant Bankers’ Acceptance. Any decrease in such Acceptance Fee shall be paid by each Global Revolving Lender to the applicable Borrower, through the Administrative Agent, on the last day of the Contract Period of the relevant Bankers’ Acceptance.

Appears in 1 contract

Samples: Restatement Agreement (Aptiv PLC)

Bankers’ Acceptances. ~~2.5.1 Subject~~ (a) Each acceptance and purchase of B/As of a single Contract Period pursuant to the terms hereof shall be made ratably by the Revolving Lenders in accordance with the amounts of their Revolving Commitments. The failure of any Revolving Lender to accept any B/A required to be accepted by it shall not relieve any other Revolving Lender of its obligations hereunder; provided that the Revolving Commitments are several and ~~conditions~~ no Revolving Lender shall be responsible for any other Revolving Lender’s failure to accept B/As as required. (b) The B/As of ~~this Agreement~~a single Contract Period accepted and purchased on any date shall be in an aggregate face amount that is at least equal to Cdn.$1,000,000 and is an integral multiple of Cdn.$500,000 and such face amount shall be in the Lenders’ pro rata portions; provided, that the Administrative Agent may in its sole discretion increase or reduce any ~~Borrower~~ Lender’s portion of such B/A to the nearest $500,000. B/As of more than one Contract Period, but not more than ten (10) Contract Periods, may be outstanding at the same time. (c) To request ~~a Borrowing by presenting drafts for~~ an acceptance and purchase as of B/As As, the Parent Borrower shall notify the Administrative Agent of such request in accordance with Section 2.08(d). Each such request shall be irrevocable and, if telephonic, shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written request in a form approved by the ~~Lender~~Administrative Agent and signed by the Parent Borrower. ~~Notwithstanding any other provision of this Agreement, to~~ Each such telephonic and written request shall specify the ~~extent~~ following information: (i) the Lender is unable to accept drafts, the Lender may make an advance to the Borrower in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). The principal amount of a B/A Equivalent Loan shall be equal to the aggregate face amount of the ~~applicable draft that would otherwise be issued to the Lender in connection therewith, and the provisions of this Agreement shall apply to such~~ B/~~A Equivalent Loan as if~~ As to be accepted and purchased; (ii) the date of such acceptance and purchase, which shall be a ~~draft had been issued~~ Business Day; (iii) the Contract Period to ~~such Lender (including the payment~~ be applicable thereto, which shall be a period contemplated by the ~~Lender~~ definition of the term “Contract Period” (and which shall in no event end after the Latest Maturity Date); and (iv) the location and number of the Parent Borrower’s account to which the applicable Discount Proceeds ~~as provided for in~~ (net of applicable Acceptance Fees) are to be disbursed, which shall comply with the requirements of Section ~~2.5.6 at the time the draft would have been issued to such Lender)~~2.08. ~~The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No~~ If no Contract Period is specified with respect to a any requested acceptance and purchase of B/A As, then the Parent Borrower shall be deemed to have selected a Contract Period of 30 days’ duration. Promptly following receipt of a request in accordance with this paragraph, the Administrative Agent shall so advise each Revolving Lender and shall advise each Lender of the aggregate face amount of B/As to be accepted and purchased ~~under~~ by such Lender and the ~~Credit Facility~~ applicable Contract Period (which shall ~~extend beyond the Maturity Date~~be identical for all Lenders). ~~2.5.3 To facilitate availment of B/A Borrowings~~ (~~other than B/A Equivalent Loans), each~~ d) Parent Borrower hereby appoints ~~the~~ each Revolving Lender as its attorney to sign and endorse on its ~~behalf (in accordance with a Borrowing Request relating to a B/A Borrowing)~~behalf, ~~in handwriting~~ manually or by facsimile or mechanical ~~signature~~ signature, as and when deemed necessary by ~~the~~ such Lender, blank forms of B/As As, in the form requested by ~~the Lender. In this respect~~such Lenders, each Revolving Lender hereby agreeing that it ~~is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of~~ will not sign or endorse B/As ~~for acceptance under this Agreement~~in excess of those required in connection with B/A Drawings that have been requested by the Parent Borrower hereunder. ~~Each~~ The Parent Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by ~~the~~ any Revolving Lender ~~on behalf of such Borrower~~ shall bind ~~such~~ the Parent Borrower as fully and effectually as if manually signed ~~in the handwriting of~~ and duly issued by ~~the proper signing~~ authorized officers of ~~such~~ the Parent Borrower. ~~The~~ Each Revolving Lender is hereby authorized ~~(in accordance with a Borrowing Request relating to a B/A Borrowing)~~ to issue such B/As endorsed in blank in such face amounts as may be determined by ~~the~~ such Revolving Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted ~~and purchased~~ by ~~the~~ such Revolving Lender. ~~The~~ No Revolving Lender shall ~~not~~ be liable for any damage, loss or ~~other~~ claim arising by reason of any loss or improper use of any such instrument ~~except for~~ unless such loss or improper use results from the bad faith, gross negligence or ~~wilful~~ willful misconduct as determined by a final, non-appealable judgment of ~~the Lender or its officers, employees, agents or representatives~~a court of competent jurisdiction of such Revolving Lender. ~~The~~ Each Revolving Lender shall maintain a record with respect to B/As (ai) received by it in blank hereunder, (bii) voided by it for any reason, (ciii) ~~accepted or~~ accepted and purchased by it ~~hereunder,~~ hereunder and (div) cancelled at their respective maturities. On Each Revolving Lender further agrees to retain such records in the manner and for the periods provided in applicable provincial or federal statutes and regulations of Canada and to provide such records to the Parent Borrower upon its request and at its expense. Upon request by ~~or on behalf of any~~ the Parent Borrower, ~~the~~ a Revolving Lender shall cancel all forms of B/A ~~which~~ that have been pre-signed or pre-endorsed on behalf of ~~such~~ the Parent Borrower and ~~which~~ that are held by ~~the~~ such Lender and are not required to be issued ~~in accordance with such Borrower’s irrevocable notice~~pursuant to this Agreement. ~~2.5.4~~ (e) Drafts of a the Parent Borrower to be accepted as B/As hereunder shall be signed as set forth in ~~this Section 2.5~~paragraph (d) above. Notwithstanding that any ~~person~~ Person whose signature appears on any B/A may no longer be an authorized signatory for any of the ~~Lender~~ Revolving Lenders or a Parent Borrower at the date of issuance of a such B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed and properly completed shall be binding on ~~a Borrower who requested such B/A. 2.5.5 In~~ the ~~case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000~~Parent Borrower. ~~2.5.6~~ (f) Upon acceptance of a B/A by a Revolving Lender pursuant to the ~~Lender~~terms hereof, ~~the~~ such Lender ~~unless otherwise requested by a Borrower,~~ shall ~~purchase, or arrange for the~~ purchase ~~of, each~~ such B/A from the Parent Borrower at the Discount Rate for such Lender applicable to such B/A accepted by it and ~~shall pay~~ provide to the Administrative Agent the Discount Proceeds to for the ~~Borrower in respect thereof~~account of the Parent Borrower. An The Acceptance Fee ~~shall be~~ payable by the Parent Borrower to ~~the~~ a Revolving Lender under Section 2.13(g) in respect of each B/A accepted by ~~the~~ such Revolving Lender ~~and such Acceptance Fee~~ shall ~~either~~ be set off against the Discount Proceeds payable by ~~the~~ such Revolving Lender under this ~~Section 2.5.6 or paid to the Lender at the time of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As~~paragraph. ~~2.5.7 The~~ (g) Each Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As A’s accepted and purchased by it. ~~2.5.8 With respect to each~~ (h) Each B/A ~~Borrowing,~~ accepted and purchased hereunder shall mature at ~~or before 10:00 a.m. one Business Day before~~ the ~~last day~~ end of the Contract Period ~~of such B/As~~applicable thereto and except as provided in Section 2.07, ~~the Borrower that requested the~~ Section 2.14 and Section 2.15 and as required under Article VIII, no B/A ~~shall notify~~ may be repaid by the ~~Lender by irrevocable written notice, followed by a notice of rollover on~~ Parent Borrower prior to the ~~same day, if the Borrower intends to issue B/As on such last day~~ expiry date of the Contract Period applicable to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such B/~~As on the last day of the Contract Period of such B/As. If the~~ A. (i) The Parent Borrower fails to make such payment, such maturing B/As shall be deemed to have been converted on the last day of the Contract Period into a Canadian Prime Loan in an amount equal to the face amount of such B/As and the Borrower shall be deemed to have irrevocably requested such conversion without the execution of a Borrowing Request. 2.5.9 The Borrowers waive waives presentment for payment and any other ~~defence~~ defense to payment of any amounts due to ~~the~~ a Revolving Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by ~~the~~ such Lender in its own ~~right,~~ right and the ~~Borrowers agree~~ Parent Borrower agrees not to claim any days of grace if ~~the Lender,~~ such Lender as ~~holder,~~ holder claims payment from or sues the ~~Borrowers~~ Parent Borrower on the B/A for payment of the ~~amount~~ amounts payable by the ~~Borrowers~~ Parent Borrower thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required ~~or permitted~~ pursuant to the provisions of this Agreement, the Parent Borrower ~~who requested such B/A~~ shall pay to the Administrative Agent, for the account of the Revolving Lender that has accepted and purchased such B/A or relevant B/A Equivalent Loan (irrespective of whether such Lender then holds such BA), the full face amount of such B/A ~~and~~or B/A Equivalent Loan, as the case may be, and after such ~~payment,~~ payment the ~~Borrowers~~ Parent Borrower shall have no further liability in respect of such B/A and ~~the~~ such Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. ~~2.5.10 If any Event of Default shall occur and be continuing~~(j) Alternatively, the ~~Borrowers~~ Parent Borrower agrees that, at the request of the Administrative Agent, the Parent Borrower shall ~~deposit in an interest bearing account~~ deliver to the Administrative Agent a “depository note” which complies with the ~~Lender~~requirements of the Depository Bills and Notes Act (Canada), and consents to the deposit of any such depository note in the ~~name~~ book-based debt clearance system maintained by the Canadian Depository for Securities. (k) If a Revolving Lender is not a charter bank named in Schedule 1 to the Bank Act (Canada) or if a Revolving Lender notifies the Administrative Agent in writing that it is otherwise unable or unwilling to accept B/As, such Lender will, instead of accepting and purchasing B/As, make a Loan (a “B/A Equivalent Loan”) to the Parent Borrower in the amount and for the same term as each draft which such Lender would otherwise have been required to accept and purchase hereunder (it being the intention of the ~~Lender~~parties that each B/A Equivalent Loan shall have the same economic consequences for each Lender making such B/A Equivalent Loan and the Parent Borrower as the B/A that such B/A Equivalent Loan replaces, ~~an amount in cash equal~~ including payment by the Parent Borrower to each such Lender making such B/A Equivalent Loan of the Acceptance Fee). Each such Lender will provide to the ~~face amount~~ Administrative Agent the Discount Proceeds of ~~all~~ such B/A Equivalent Loan for the account of the Parent Borrower in the same manner as such Lender would have provided the Discount Proceeds in respect of the draft which such Lender would otherwise have been required to accept and purchase hereunder. (l) Amounts to be applied pursuant to 2.14 and 2.15 and as required under Article VIII to prepay or repay amounts to become due with respect to then outstanding B/As ~~then outstanding. Such deposit~~ shall be ~~held~~ deposited in a Prepayment Account (as defined below). The Administrative Agent shall apply any cash deposited in the Prepayment Account allocable to amounts to become due in respect of B/As on the last day of their respective Contract Periods until all amounts due in respect of such outstanding B/As have been repaid or until all such cash has been exhausted (and any amount remaining in the Prepayment Account after all of the respective B/As for which the applicable deposit was made have matured and been paid will be released to the Parent Borrower). For purposes of this Agreement, the term “Prepayment Account” means an account established by the ~~Lender as collateral for~~ Parent Borrower with the ~~payment~~ Administrative Agent and ~~performance of~~ over which the ~~obligations of the Borrowers under this Agreement. The Lender~~ Administrative Agent shall have exclusive ~~dominion and~~ control, including the exclusive right of ~~withdrawal, over such account~~withdrawal for application in accordance with this paragraph (l). The ~~deposit shall bear interest~~ Administrative Agent will, at the ~~rate customarily offered~~ request of the Parent Borrower, invest amounts on deposit in the Prepayment Account in short-term, cash equivalent investments selected by the ~~Lender~~ Administrative Agent with the consent of the Parent Borrower that mature prior to the last day of the applicable Contract Periods of the B/As to be prepaid; provided, however, that the Administrative Agent shall have no obligation to invest amounts on deposit in the Prepayment Account if an Event of Default shall have occurred and be continuing. The Parent Borrower shall indemnify the Administrative Agent for ~~deposits~~ any losses relating to the investments so that the amount available to prepay amounts due in ~~similar circumstances and~~ respect of B/As on the last day of the applicable Contract Period is not less than the amount that would have been available had no investments been made pursuant thereto. Other than any interest earned on ~~the deposit or on the investment of~~ such ~~deposit, if mutually agreed,~~ investments (which ~~investments~~ shall be ~~made at~~ for the ~~Borrowers’ risk and expense shall accumulate in such account. Moneys in such~~ account ~~shall be applied by~~ of the ~~Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and~~Parent Borrower, to the extent not ~~so applied~~necessary for the prepayment of B/As in accordance with this Section), the Prepayment Account shall not bear interest. Interest or profits, if any, on such investments shall be deposited in the Prepayment Account and reinvested and disbursed as specified above. If the maturity of the Loans ~~has~~ and all amounts due hereunder have been ~~accelerated~~accelerated pursuant to Article VIII, ~~be applied~~ the Administrative Agent may, in its sole discretion, apply all amounts on deposit in the Prepayment Account of the Parent Borrower to satisfy ~~other obligations~~ any of the ~~Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result~~ Obligations of the ~~occurrence~~ Parent Borrower in respect of ~~an Event of Default, such amount~~ Loans and B/As (and the Parent Borrower hereby grants to the ~~extent not applied as aforesaid) shall be returned~~ Administrative Agent a security interest in its Prepayment Account to ~~the Borrowers within three Business Days after all Events of Default have been cured or waived~~secure such Obligations).

Appears in 1 contract

Samples: Credit Agreement (Patheon Holdings Cooperatief U.A.)

Bankers’ Acceptances. ~~2.5.1 Subject~~ (a) Upon receiving an appropriate request from the Borrowers, the Bank shall create a Bankers' Acceptance in the manner set forth in the Acceptance Agreement, using drafts signed by Borrower and provided to Bank. Each Bankers' Acceptance shall (i) be of a type of eligible for discounting and purchase under 12 U.S.C. ss.372 and the rules of the Board of Governors of the Federal Reserve System then in effect, and (ii) have a maturity of 30, 60 or 90 days. On the date of the requested Bankers' Acceptance, the Bank shall notify Borrowers as to the rate applicable for discounting the Bankers' Acceptance to be created, which rate shall be the Discount Rate. The obligations and rights of the Borrowers and the Bank with respect to the Bankers' Acceptances shall be governed by the terms ~~and conditions~~ of this ~~Agreement, any Borrower may request~~ Agreement as well as the terms of the Acceptance Agreement which is incorporated herein by reference and made a ~~Borrowing by presenting drafts for acceptance and purchase as B/As by the Lender. Notwithstanding any other provision of this Agreement,~~ part hereof. (b) The Borrowers shall pay to the extent the Lender is unable to accept drafts, the Lender may make an advance to the Borrower in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). The principal amount of a B/A Equivalent Loan shall be equal to Bank the face amount of the applicable draft that would otherwise be issued to the Lender in connection therewith, and the provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment Bankers' Acceptance created by the ~~Lender of Discount Proceeds as provided for in Section 2.5.6 at~~ Bank under above, on the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf stated maturity date of such Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by the Lender. The Lender shall not be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by the Borrower to the Lender in respect of each B/A accepted by the Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid to the Lender at the time of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it. 2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/AsBankers' Acceptance. If the ~~Borrower fails~~ Borrowers shall fail to ~~so notify~~ pay the ~~Lender~~ full amount on each such date, any amount due but unpaid shall automatically be paid through the making of ~~its intention~~ a Revolving Credit Loan in the amount due but unpaid as of such date. Upon the making of such an automatic Revolving Credit Loan, the Obligation of the Borrowers to ~~issue B/As~~ pay the Bankers' Acceptances on such ~~last day of the Contract Period, the Borrower~~ date shall ~~provide payment to the Lender of an amount equal to the aggregate face amount of such B/As on the last day of the Contract Period of such B/As~~be deemed satisfied. ~~If the Borrower fails to make such payment~~Upon being made, such ~~maturing B/As~~ automatic Revolving Credit Loan shall be deemed to ~~have been converted on~~ be a Prime Rate Loan made under the ~~last day of the Contract Period into a Canadian Prime~~ Revolving Loan ~~in an amount equal to the face amount of such B/As~~ Commitment and the Borrower shall be deemed to have irrevocably requested such conversion without the execution of a Borrowing Request. 2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due to the Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, the Borrowers shall have no further liability in respect of such B/A and the Lender Bank shall be entitled to exercise all ~~benefits of,~~ of its rights and ~~be responsible for all payments due~~ remedies with respect to ~~third parties under,~~ such ~~B/A. 2.5.10 If any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal~~ automatic Revolving Credit Loan as if it were made pursuant to the face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waivedSection 2.1 hereof.

Appears in 1 contract

Samples: Credit Agreement (Quad Systems Corp /De/)

Bankers’ Acceptances. ~~2.5.1 Subject~~ The following provisions shall apply to Advances obtained by way of the issuance of Bankers' Acceptances: 7.5.1 all drafts required to be accepted by a Lender pursuant to this Agreement shall be in the form requested by such Lender, and, shall be executed and drawn by such Lender on behalf of the Relevant Borrower pursuant to the ~~terms and conditions~~ power of ~~this Agreement,~~ attorney contained in Section 7.5.3; 7.5.2 any Borrowing Notice requesting an issue of Bankers' Acceptances shall include instructions from the Relevant Borrower may request a Borrowing by presenting drafts for acceptance and purchase as B/As by the Lender. Notwithstanding any other provision of this Agreement, to the extent the Lender is unable to accept drafts, the Lender may make an advance to the Borrower in lieu of purchasing a draft stating that it ~~would otherwise be required~~ wishes to ~~purchase hereunder (a “B/A Equivalent Loan”). The principal amount of a B/A Equivalent Loan shall be equal to~~ have drafts accepted as Bankers' Acceptances under this Agreement and stating the aggregate face amount of ~~the applicable draft that would otherwise be issued to the Lender in connection therewith,~~ and the ~~provisions of this Agreement shall apply~~ term (being, subject to availability, one, two, three or six months) applicable to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender)drafts. The ~~Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period~~ Relevant Borrower may notify the Agent by telephone of its instructions with respect to Bankers' Acceptances, provided it shall immediately thereafter confirm its telephone instructions given pursuant to this Section 7.5.2 by a ~~B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date.~~Borrowing Notice; ~~2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans),~~ 7.5.3 each Borrower ~~hereby~~ authorizes each Lender, and for this purpose appoints each Lender the ~~Lender as its~~ lawful attorney of such Borrower, to complete, sign and endorse drafts on its behalf ~~(in accordance with a Borrowing Request relating to a B/A Borrowing),~~ in handwriting or by facsimile or mechanical signature in accordance with each Borrowing Notice and, once so completed, signed and endorsed, and following acceptance of them as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance a Bankers' Acceptance under this Agreement, then purchase, discount or negotiate such Bankers' Acceptances in accordance with the provisions of this Section 7.5. ~~Each Borrower recognizes~~ Drafts so completed, signed and ~~agrees that all B/As signed and/or~~ endorsed ~~by the Lender~~ and negotiated on behalf of ~~such~~ each Borrower shall bind such Borrower as ~~fully and effectually as~~ if ~~signed in the handwriting of and duly issued~~ so performed by ~~the proper signing officers~~ an authorized officer of such Borrower. The Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by the Lender. The Lender shall not be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice.; 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, 7.5.4 the face amount of each ~~B/A~~ Bankers' Acceptance to be accepted by ~~the~~ a Lender ~~shall be in a minimum aggregate amount of Cdn$500,000 and~~ shall be a whole number multiple of ~~Cdn$50,000.~~Cdn.$100,000; ~~2.5.6 Upon acceptance~~ 7.5.5 the Agent shall have the discretion to restrict the term and the Maturity Date of an issue of Bankers' Acceptances. The Maturity Date of each issue of Bankers' Acceptances must be no later than the Due Date of the relevant Credit Facility. There shall not be more than ten (10) issues of Bankers' Acceptances maturing during any single calendar month under the Credit Facilities, unless the Agent otherwise agrees; 7.5.6 each Lender shall purchase each Bankers' Acceptance accepted by it at a ~~B/A by~~ discount to yield (excluding the Acceptance Fee) an interest rate per annum equal to such Lender, 's BA Reference Rate on each Acceptance Date of Bankers' Acceptances issued pursuant to this Agreement. The obligation of the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by the Relevant Borrower to pay to a Lender the ~~Lender in respect~~ face amount of each ~~B/A accepted~~ Bankers' Acceptance so purchased by it upon the ~~Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid to the Lender at the time of acceptance~~ maturity of such B/Bankers' Acceptance shall continue in full force and effect notwithstanding such purchase. A ~~by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As. 2.5.7 The~~ Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any ~~or all B/As accepted and~~ Bankers' Acceptance purchased by it.; ~~2.5.8 With respect~~ 7.5.7 when Bankers' Acceptances are being issued, each Lender shall, subject to ~~each B/A Borrowing~~Section 13.20.7, transfer to the Agent at ~~or before 10:00 a.m. one Business Day before~~ the ~~last day~~ Agent's Branch of ~~the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover~~ Account for value on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to the aggregate face amount of such B/As on the last day of the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As shall be deemed to have been converted on the last day of the Contract Period into a Acceptance Date immediately available Canadian ~~Prime Loan~~ dollars in an amount equal to the net proceeds of sale of all Bankers' Acceptances purchased by it on such Acceptance Date, net of the applicable Acceptance Fee in respect of such Bankers' Acceptances. Subject to Section 5.6, the Agent will transfer such amounts to the Relevant Borrower by depositing the same for value on the applicable Acceptance Date to the Designated Account of the Relevant Borrower; 7.5.8 the Acceptance Fee applicable to each Bankers' Acceptance shall be calculated upon the principal face amount of such ~~B/As and~~ Bankers' Acceptance for the duration of its term on the basis of the actual number of days from the date of its acceptance by a Lender up to the Maturity Date of the Bankers' Acceptance calculated on the basis of a 365 day year at the rates per annum provided for in Section 2.3 or 3.4, as applicable; 7.5.9 the Relevant Borrower shall ~~be deemed to have irrevocably requested such conversion without~~ provide for the ~~execution of a Borrowing Request. 2.5.9 The Borrowers waive presentment for~~ payment ~~and any other defence to payment of any amounts due~~ to the ~~Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held,~~ Lenders at the ~~maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days~~ Agent's Branch of ~~grace if the Lender, as holder, sues the Borrowers on the B/A for payment~~ Account of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount of ~~such B/A and~~each issue of Bankers' Acceptance on its Maturity Date or, after such payment, the Borrowers shall have no further liability in respect of such B/A and the Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of all B/As then outstanding. Such deposit shall be held by the Lender as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, ~~such amount (~~prior to ~~the extent not applied as aforesaid) shall be returned~~ its Maturity Date forthwith pursuant to ~~the Borrowers within three Business Days after all Events of Default have been cured or waived~~Section 12.

Appears in 1 contract

Samples: Loan Agreement (Gerdau Ameristeel Corp)

Bankers’ Acceptances. ~~2.5.1~~ (i) Subject to and upon the terms and conditions of this Agreement, any Borrower may request a Borrowing by presenting drafts for acceptance and purchase as B/As by the Lender. Notwithstanding any other provision of this Agreement, to the extent the Lender is unable to accept draftsherein set forth, the Lender may make an advance to the Borrower in lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). The principal amount of a B/A Equivalent Loan shall be equal to the face amount of the applicable draft that would otherwise be issued to the Lender in connection therewithBorrowers, and the provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment by the Lender of Discount Proceeds as provided for in Section 2.5.6 at the time the draft would have been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. cannot accept drafts and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by the Lender. The Lender shall not be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by the Borrower to the Lender in respect of each B/A accepted by the Lender and such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid to the Lender at the time of acceptance of such B/A by the Lender in the event that the Borrower does not request the Lender to purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time ~~hold~~on or after the Amendment Effective Date up to but excluding the date on which the Facility 1 Commitments are terminated, ~~sell~~may request that Bankers Trust accept a draft (a "Facility 1 Acceptance" or "Acceptance") as herein provided in lieu of borrowing additional sums under the Facility 1 Commitments in an aggregate face amount at any time outstanding not to exceed the aggregate Facility 1 Commitments, ~~rediscount or otherwise dispose~~ as such commitments may be reduced from time to time pursuant to Section 8.6(c); provided that the aggregate principal amount of ~~any or all B/As accepted~~ Facility 1 Loans and purchased by it. 2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment to the Lender of an amount equal to Swing-Line Loans plus the aggregate face amount of all Facility 1 Acceptances outstanding at any time shall not exceed the Facility 1 Maximum Amount. (ii) Bankers Trust may create Facility 1 Acceptances in its sole and absolute discretion upon a request by the Borrowers delivered in accordance with clause (i) above, and each such ~~B/As on the last day of the Contract Period of such B/As. If the Borrower fails to make such payment, such maturing B/As~~ Facility 1 Acceptance shall be ~~deemed to have been converted on~~ created hereunder by Bankers Trust's accepting a draft, in substantially the ~~last day~~ form of ~~the Contract Period into~~ Exhibit B-2 hereto (a ~~Canadian Prime Loan in an amount equal to the face amount of such B/As and the Borrower~~ " Draft"). Each Draft shall be deemed to have irrevocably requested such conversion without the execution of a Borrowing Request. 2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due to the Lender in respect of a B/A accepted and purchased (a) drawn by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on Bankers Trust in accordance with the ~~B/A for payment~~ terms hereof and be payable in U.S. Dollars, (b) payable only to the order of the Acceptance Agent, (c) dated the date of acceptance of such Draft by Bankers Trust, (d) in a face amount ~~payable by~~ at least equal to $1,000,000 and shall (e) mature on a Business Day either thirty (30), sixty (60) or ninety (90) days after the ~~Borrowers thereunder. On~~ date of such Draft; provided that in no event shall an Acceptance (i) be created unless the ~~last day~~ conditions set forth in Article III have been satisfied with respect to the issuance of such Facility 1 Acceptance, (ii) mature after the ~~Contract Period of a B/A~~Maturity Date, or ~~such earlier date as may be required or permitted pursuant to the provisions of this Agreement~~(iii) have a face amount, the Borrower who requested such B/A shall pay the Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, the Borrowers shall have no further liability in respect of such B/A and the Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account together with the ~~Lender, in the name of the Lender, an amount in cash equal to the~~ aggregate face amount of all ~~B/As~~ other Facility 1 Acceptances plus the aggregate principal amount of Facility 1 Loans and Swing-Line Loans then outstanding~~. Such deposit shall be held by~~ , exceeding the ~~Lender as collateral for~~ Facility 1 Maximum Amount. (iii) The Borrowers hereby acknowledge and agree that (a) Bankers Trust has no obligation to discount any Facility 1 Acceptance, (b) Bankers Trust has no obligation to create any Facility 1 Acceptance except in the ~~payment~~ exercise of its sole and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such depositabsolute discretion and, if ~~mutually agreed, which investments shall be made at the Borrowers’ risk~~ and ~~expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and,~~ to the extent ~~not so applied~~that any Facility 1 Acceptance is created, if such Facility 1 Acceptance may only be discounted by the ~~maturity~~ Acceptance Agent in accordance with the Funding Agreement which shall be in full force and effect and (c) on the date of the ~~Loans has been accelerated~~creation by Bankers Trust of any Facility 1 Acceptance, ~~be applied~~ Bankers Trust is only obligated to ~~satisfy other obligations of~~ deliver such Facility 1 Acceptance as set forth in the ~~Borrowers under this Agreement. If the Borrowers are required~~ Request for Acceptance and to ~~provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default,~~ pay such ~~amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waived~~Facility 1 Acceptance in accordance with its terms.

Appears in 1 contract

Samples: Credit Agreement (First Financial Caribbean Corp)

Bankers’ Acceptances. ~~2.5.1 Subject~~ The following provisions shall, in addition to the ~~terms and conditions of this Agreement~~other provisions contained herein, ~~any Borrower may request a Borrowing by presenting drafts for acceptance and purchase as B/As by the Lender. Notwithstanding any other provision of this Agreement,~~ apply to all Bankers' Acceptances accepted pursuant to the ~~extent the Lender is unable to accept drafts~~Credit: (a) Subject as hereinafter provided, the ~~Lender may make an advance to~~ Borrower shall, not later than 10:00 a.m. (Toronto time) on the ~~Borrower~~ Borrowing Day (or on the Banking Day preceding the Borrowing Day in ~~lieu of purchasing a draft that it would otherwise be required to purchase hereunder (a “B/A Equivalent Loan”). The principal amount of a B/A Equivalent Loan shall be equal to~~ the event the face amount of the ~~applicable~~ draft ~~that would otherwise~~ to be ~~issued~~ tendered by the Borrower for acceptance is equal to or exceeds Cdn. $10,000,000), give the Lender ~~in connection therewith~~a Borrowing Notice stating its intention to tender drafts for acceptance as, ~~and~~ or a Rollover into, Bankers' Acceptances. (b) Each draft tendered by the ~~provisions of this Agreement shall apply to such B/A Equivalent Loan as if a draft had been issued to such Lender (including the payment~~ Borrower for acceptance by the Lender as a Bankers' Acceptance shall have a face amount in integral multiples of ~~Discount Proceeds as provided for~~ Cdn. $100,000 subject to a minimum aggregate face amount of Cdn. $1,000,000, shall be payable in ~~Section 2.5.6 at the time the draft would~~ Canada, and shall have ~~been issued to such Lender). The Borrowers acknowledge that BPEG US Inc. can~~a term of not ~~accept drafts~~ less than seven days, if available, and ~~will be advancing B/A Equivalent Loans~~not more than 180 days. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings (other than B/A Equivalent Loans), each Borrower hereby appoints the Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by the Lender. The Lender shall not be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided by it for any reason, (c) accepted or accepted and purchased by it hereunder, and (d) cancelled at their respective maturities. On request by or on behalf of any Borrower, the Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Borrower and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice. 2.5.4 Drafts of a Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A Each draft to be accepted by the Lender shall be ~~in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by~~ tendered on the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable applicable Borrowing Day by the Borrower to the Lender ~~in respect~~ at the Branch and the amount of ~~each B/A accepted~~ the Accommodation constituted thereby shall be the face amount of such draft. No draft shall be tendered by the Borrower for acceptance by the Lender ~~and~~ if such ~~Acceptance Fee shall either be set off against~~ draft is for a term that would expire subsequent to the ~~Discount Proceeds payable~~ Maturity Date or if such draft is in an amount which is inconsistent with the aggregate amount of Accommodation available pursuant to the Credit. (d) Upon tender of a draft by the ~~Lender under this Section 2.5.6 or paid to the Lender at the time of~~ Borrower for acceptance ~~of such B/A~~ by the Lender in accordance with the ~~event that the Borrower does not request~~ terms hereof, the Lender ~~to purchase the accepted B/As. 2.5.7 The Lender may at any time~~ shall accept such drafts and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it. 2.5.8 With respect to each B/A Borrowing, at or before 10:00 a.m. one Business Day before the last day of the Contract Period of such B/As, the Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall ~~provide payment~~ pay to the Lender ~~of an amount equal~~ the applicable fees for such acceptance, as required pursuant to ~~the aggregate face amount of such B/As on the last day of the Contract Period of such B/As. If~~ Section 4.08. (e) unless the Borrower ~~fails to make such payment~~otherwise notifies the Lender, ~~such maturing B/As~~ the Lender shall ~~be deemed to have been converted~~ purchase Bankers' Acceptances on their Borrowing Date at the ~~last day of the Contract Period into a Canadian Prime Loan in an amount~~ purchase price equal to the face amount of such ~~B/As~~ Bankers' Acceptances less an amount equal to the amount that yields to the Bank (excluding the Bankers' Acceptance Fee) an interest rate per annum equivalent to the BA Discount Rate. (f) On the date of maturity of each Bankers' Acceptance, the Borrower shall pay to the Lender the necessary Canadian Dollars in respect of Bankers' Acceptance drawn in order to discharge its obligations under such Bankers' Acceptance. Prior to the Maturity Date, unless the Borrower prepays such portion of the Credit, such payment shall be made from the proceeds of a Rollover and (to the extent applicable) the payment made by the Borrower pursuant to Section 2.06(h). If the Borrower fails to give a Borrowing Notice in respect of any such maturing Bankers' Acceptances, the Lender shall make a Prime Rate Borrowing to the Borrower pursuant to the Credit, for such purpose in the principal amount required to discharge the Borrower's obligations pursuant to such Bankers' Acceptance. The Lender shall promptly give notice to the Borrower of any such Prime Rate Borrowings made by the Lender to the Borrower, and the Borrower shall ~~be deemed~~ accept and use, and hereby irrevocably directs the Lender to ~~have irrevocably requested~~ apply, the proceeds of all such ~~conversion without~~ Prime Rate Borrowings made from time to time to discharge the ~~execution of a Borrowing Request~~Borrower's obligations pursuant to such Bankers' Acceptance. ~~2.5.9 The Borrowers waive presentment for payment and any other defence to payment~~ (g) To facilitate the acceptance of ~~any amounts due to the Lender in respect of a B/A accepted and purchased by it~~ Bankers' Acceptance pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment of the amount payable by the Borrowers thereunder. On the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower ~~who requested such B/A~~ shall ~~pay~~ from time to time provide the Lender ~~that has accepted and purchased such B/A the full face amount~~ a power of ~~such B/A and, after such payment, the Borrowers shall have no further liability in respect of such B/A and~~ attorney pursuant to which the Lender shall be ~~entitled~~ entitled, upon receiving the Borrower's instructions, to ~~all benefits of, and be responsible for all payments due~~ complete any Bankers' Acceptance pursuant to ~~third parties under, such B/A.~~this Agreement on behalf of the Borrower. ~~2.5.10~~ (h) If ~~any Event of Default shall occur and be continuing~~the Borrower fails to provide a Borrowing Notice in accordance with Section 2.08(a) or fails to act in accordance with a Borrowing Notice given, the ~~Borrowers shall deposit~~ Lender may in ~~an interest bearing account with the Lender~~its discretion, ~~in the name of the Lender, an amount in cash equal~~ decline to ~~the face amount of all B/As then outstanding. Such deposit~~ stamp such additional Bankers' Acceptances and any relevant maturing Bankers' Acceptances shall be ~~held~~ paid on their maturity by ~~the Lender as collateral for the payment and performance~~ a Rollover by way of ~~the obligations of the Borrowers under this Agreement~~Prime Rate Borrowings. ~~The Lender shall have exclusive dominion and control~~ARTICLE THREE TERMINATION AND REDUCTION OF CREDIT, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waived.REPAYMENT AND MATURITY

Appears in 1 contract

Samples: Credit Agreement (Geon Co)

Bankers’ Acceptances. ~~2.5.1 Subject to~~ (1) To facilitate the ~~terms and conditions of~~ procedures contemplated in this Agreement, ~~any~~ the Canadian Borrower ~~may request a Borrowing~~ irrevocably appoints each Canadian Lender from time to time as the attorney-in-fact of the Canadian Borrower to execute, endorse and deliver on behalf of the Canadian Borrower drafts in the forms prescribed by ~~presenting drafts for acceptance and purchase as B/As by the Lender. Notwithstanding any other provision of this Agreement, to the extent the~~ such Lender (if such Lender is ~~unable~~ a BA Lender) for bankers’ acceptances denominated in Cdn. Dollars (each such executed draft which has not yet been accepted by a Lender being referred to ~~accept drafts,~~ as a “Draft”) or non-interest-bearing promissory notes of the ~~Lender may make an advance to the~~ Canadian Borrower in ~~lieu~~ favour of ~~purchasing~~ such Lender (if such Lender is a ~~draft that it would otherwise be required~~ Non BA Lender) (each such promissory note being referred to ~~purchase hereunder (~~as a “~~B/A~~ BA Equivalent ~~Loan~~Note”). Each Bankers’ Acceptance and BA Equivalent Note executed and delivered by a Lender on behalf of the Canadian Borrower as provided for in this Section will be as binding upon the Canadian Borrower as if it had been executed and delivered by a duly authorized officer of the Canadian Borrower. (2) Notwithstanding Section 5.01(1), the Canadian Borrower will from time to time as required by the applicable Lender provide to the Lenders an appropriate number of Drafts drawn by the Canadian Borrower upon each BA Lender and either payable to a clearing service (if such BA Lender is a member thereof) or payable to the Canadian Borrower and endorsed in blank by the Canadian Borrower (if such BA Lender is not a member of such clearing service) and an appropriate number of BA Equivalent Notes in favour of each Non BA Lender. The dates, the maturity dates and the principal amounts of all Drafts and BA Equivalent Notes delivered by the Canadian Borrower will be left blank, to be completed by the Lenders as required by this Agreement. All such Drafts or BA Equivalent Notes will be held by each Lender subject to the same degree of care as if they were such Lender’s own property kept at the place at which the Drafts or BA Equivalent Notes are ordinarily kept by such Lender. Each Lender, upon written request of the Canadian Borrower, will promptly advise the Canadian Borrower of the number and designation, if any, of the Drafts and BA Equivalent Notes then held by it. No Lender will be liable for its failure to accept a Draft or purchase a BA Equivalent Note as required by this Agreement if the cause of such failure is, in whole or in part, due to the failure of the Canadian Borrower to provide on a timely basis appropriate Drafts or BA Equivalent Notes to the applicable Lender as may be requested by such Lender on a timely basis from time to time. (3) The Agent, promptly following receipt of a Drawdown Notice requesting Bankers’ Acceptances, will (i) advise each BA Lender of the face amount and the term of the Draft to be accepted by it and (ii) advise each applicable Non BA Lender of the face amount and term of the BA Equivalent Note to be purchased by it. All Drafts to be accepted from time to time by each BA Lender that is a member of a clearing service will be payable to such clearing service. The term of all Bankers’ Acceptances and BA Equivalent Notes issued pursuant to any Drawdown Notice will be identical. Each Bankers’ Acceptance and BA Equivalent Note will be dated the Drawdown Date on which it is issued and will be for a term of one month provided that in no event will the term of a Bankers’ Acceptance or a BA Equivalent Note extend beyond the Maturity Date. The face amount of the Draft (or the aggregate face amount of the Drafts) to be accepted at any time by each Lender which is a ~~B/A Equivalent Loan shall be equal to~~ BA Lender, and the face amount of the ~~applicable draft that would otherwise~~ BA Equivalent Notes to be ~~issued~~ purchased at any time by each Lender which is a Non BA Lender, will be determined by the Agent based upon the amounts of their respective Commitments under the Canadian Revolving Facility. In determining a Lender’s Proportionate Share of a request for Bankers’ Acceptances, the Agent, in its sole discretion, will be entitled to increase or decrease the face amount of any Draft, or BA Equivalent Note to the nearest $1,000. (4) Each BA Lender ~~in connection therewith,~~ will complete and accept on the ~~provisions of this Agreement shall apply to such B/A Equivalent Loan as if~~ applicable Drawdown Date a ~~draft had been issued to such Lender~~ Draft having a face amount (~~including~~ or Drafts having the ~~payment~~ face amounts) and term advised by the Agent pursuant to Section 5.01(3). Each applicable BA Lender of will purchase on the applicable Drawdown Date the Bankers’ Acceptance or Bankers’ Acceptances accepted by it, for an aggregate price equal to the BA Discount Proceeds ~~as provided for in Section 2.5.6 at the time the draft would have been issued to~~ of such ~~Lender~~Bankers’ Acceptance (or Bankers’ Acceptances). The ~~Borrowers acknowledge~~ Canadian Borrower will ensure that ~~BPEG US Inc. cannot accept drafts~~ there is delivered to each applicable BA Lender that is a member of a clearing service such Drafts as are consistent with the requirements of the Depository Bills and will be advancing B/A Equivalent Loans. 2.5.2 No Contract Period with respect to a B/A to be accepted and purchased under the Credit Facility shall extend beyond the Maturity Date. 2.5.3 To facilitate availment of B/A Borrowings Notes Act (~~other than B/A Equivalent Loans~~Canada), ~~each Borrower hereby appoints the Lender as its attorney to sign~~ and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by the Lender, blank forms of B/As in the form requested by the Lender. In this respect, it is the Borrowers’ responsibility to furnish the Lender with an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Borrower recognizes and agrees that all B/As signed and/or endorsed by the Lender on behalf of such ~~Borrower shall bind such Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Borrower. The~~ BA Lender is hereby authorized to release the Bankers’ Acceptance accepted by it to such clearing house upon receipt of confirmation that such clearing house holds such Bankers’ Acceptance for the account of such BA Lender. (5) Each Non BA Lender, in ~~accordance with~~ lieu of accepting Drafts or purchasing Bankers’ Acceptances on any Drawdown Date, will complete and purchase from the Canadian Borrower on such Drawdown Date a ~~Borrowing Request relating~~ BA Equivalent Note in a face amount and for a term identical to the face amount and term of the Draft or Drafts which such Non BA Lender would have been required to accept on such Drawdown Date if it were a ~~B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by the~~ BA Lender~~; provided that the aggregate amount thereof is~~ , for a price equal to the ~~aggregate amount~~ BA Discount Proceeds of ~~B/As required~~ such BA Equivalent Note. Each Non BA Lender will be entitled without charge to ~~be accepted and purchased by the Lender. The Lender shall not be liable for~~ exchange any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of the Lender or its officers, employees, agents or representatives. The Lender shall maintain a record with respect to B/As (a) received by it in blank hereunder, (b) voided BA Equivalent Note held by it for ~~any reason, (c) accepted~~ two or ~~accepted~~ more BA Equivalent Notes of identical date and ~~purchased by it hereunder~~aggregate face amount, and ~~(d) cancelled at their respective maturities. On request by or on behalf of any Borrower,~~ the Canadian Borrower will execute and deliver to such Non BA Lender ~~shall cancel all forms of B/A~~ such replacement BA Equivalent Notes in exchange for which ~~have been pre-signed or pre-endorsed on behalf of~~ such Non BA Lender will return the original BA Equivalent Note to the Canadian Borrower ~~and which are held by the Lender and are not required to be issued in accordance with such Borrower’s irrevocable notice~~for cancellation. ~~2.5.4 Drafts of a~~ (6) The Canadian Borrower will pay to be accepted as B/As hereunder shall be signed as set forth in this Section 2.5. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for the Lender or a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on a Borrower who requested such B/A. 2.5.5 In the case of B/A Borrowings, the face amount of each B/A to be accepted by the Lender shall be in a minimum aggregate amount of Cdn$500,000 and shall be a whole multiple of Cdn$50,000. 2.5.6 Upon acceptance of a B/A by the Lender, the Lender unless otherwise requested by a Borrower, shall purchase, or arrange for the purchase of, each B/A from the Borrower at the Discount Rate and shall pay the Discount Proceeds to the Borrower in respect thereof. An Acceptance Fee shall be payable by the Borrower to the BA Lender in respect of each ~~B/A~~ Draft tendered by the Canadian Borrower to and accepted by ~~the Lender~~ such BA Lender, and ~~such Acceptance Fee shall either be set off against the Discount Proceeds payable by the Lender under this Section 2.5.6 or paid~~ to ~~the Lender at the time of acceptance of such B/A by the~~ each Non BA Lender in ~~the event that the Borrower does not request the Lender~~ respect of each BA Equivalent Note tendered to ~~purchase the accepted B/As. 2.5.7 The Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted~~ and purchased by itsuch Non BA Lender, as a condition of such acceptance or purchase, the BA Stamping Fee. ~~2.5.8 With respect to~~ (7) Upon acceptance of each ~~B/A Borrowing, at~~ Draft or ~~before 10:00 a.m. one Business Day before the last day~~ purchase of ~~the Contract Period of such B/As~~each BA Equivalent Note, the Canadian Borrower that requested the B/A shall notify the Lender by irrevocable written notice, followed by a notice of rollover on the same day, if the Borrower intends to issue B/As on such last day of the Contract Period to provide for the payment of such maturing B/As. If the Borrower fails to so notify the Lender of its intention to issue B/As on such last day of the Contract Period, the Borrower shall provide payment will pay to the applicable Lender ~~of an amount equal~~ the related fee specified in Section 5.01(6), and to facilitate payment such Lender will be entitled to deduct and retain for its own account the ~~aggregate face~~ amount of such ~~B/As on~~ fee from the ~~last day~~ amount to be transferred by such Lender to the Agent for the account of the ~~Contract Period~~ Canadian Borrower pursuant to this Agreement in respect of the sale of the related Bankers’ Acceptance or of such ~~B/As.~~ BA Equivalent Note. (8) If the Agent (on instruction from the Majority Lenders) determines in good faith, which determination will be final, conclusive and binding upon the Canadian Borrower, and so notifies the Canadian Borrower, that there does not exist at the applicable time a normal market in Canada for the purchase and sale of bankers’ acceptances, any right of the Canadian Borrower ~~fails~~ to ~~make~~ require the Lenders to purchase Bankers’ Acceptances and BA Equivalent Notes under this Agreement will be suspended until the Agent determines that such ~~payment~~market does exist and gives notice thereof to the Canadian Borrower and any Drawdown Notice, ~~such maturing B/As shall~~ Conversion Notice or Rollover Notice requesting Bankers’ Acceptances will be deemed to ~~have been converted on~~ be a Drawdown Notice or Conversion Notice requesting a Prime Rate Advance in a similar aggregate principal amount. (9) On the ~~last day~~ date of maturity of each Bankers’ Acceptance or BA Equivalent Note, the Canadian Borrower will pay to the Agent, for the account of the ~~Contract Period into a~~ holder of such Bankers’ Acceptance or BA Equivalent Note, in Canadian ~~Prime Loan in~~ Dollars an amount equal to the face amount of such ~~B/As and~~ Bankers’ Acceptance or BA Equivalent Note, as the ~~Borrower shall be deemed to have irrevocably requested such conversion without~~ case may be. In the ~~execution~~ case of a ~~Borrowing Request. 2.5.9 The Borrowers waive presentment for payment and any other defence to payment of any amounts due to the Lender in respect~~ Rollover of a ~~B/A accepted and purchased by it pursuant~~ Bankers’ Acceptance or BA Equivalent Note, in order to ~~this Agreement which might exist solely by reason of such B/A being held, at~~ satisfy the ~~maturity thereof, by the Lender in its own right, and the Borrowers agree not to claim any days of grace if the Lender, as holder, sues the Borrowers on the B/A for payment~~ continuing liability of the ~~amount payable by the Borrowers thereunder. On the last day of the Contract Period of~~ applicable Borrower to a ~~B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower who requested such B/A shall pay the~~ Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, the Borrowers shall have no further liability in respect of such B/A and the Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A. 2.5.10 If any Event of Default shall occur and be continuing, the Borrowers shall deposit in an interest bearing account with the Lender, in the name of the Lender, an amount in cash equal to the face amount of ~~all B/As then outstanding~~the maturing Bankers’ Acceptance or BA Equivalent Note, the Lender will determine and retain the BA Discount Proceeds of the new Bankers’ Acceptance or BA Equivalent Note, and the Canadian Borrower will, on the maturity date of the maturing Bankers’ Acceptance or BA Equivalent Note, pay to the Agent for the account of the relevant Lender (i) the difference between the principal amount of the maturing Bankers’ Acceptance or BA Equivalent Note and the BA Discount Proceeds from the new Bankers’ Acceptance or BA Equivalent Note and (ii) the BA Stamping Fee in respect of the new Bankers’ Acceptance or BA Equivalent Note. ~~Such deposit shall~~ The obligation of the Canadian Borrower to make such payment will not be ~~held~~ prejudiced by the fact that the holder of such Bankers’ Acceptance is the Lender ~~as collateral~~ that accepted such Bankers’ Acceptances. No days of grace will be claimed by the Canadian Borrower for the payment and performance of the obligations of the Borrowers under this Agreement. The Lender shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The deposit shall bear interest at the rate customarily offered by the Lender for deposits in similar circumstances and interest earned on the deposit or on the investment of such deposit, if mutually agreed, which investments shall be made at the Borrowers’ risk and expense shall accumulate in such account. Moneys in such account shall be applied by the Lender to reimburse the Lender for payments made under B/As for which it has not been reimbursed and, to the extent not so applied, if the maturity of ~~the Loans has been accelerated, be applied to satisfy other obligations of the Borrowers under this Agreement~~any Bankers’ Acceptance or BA Equivalent Note. If the ~~Borrowers are required to provide~~ Canadian Borrower does not make such payment, from the proceeds of an Advance obtained under this Agreement or otherwise, the amount of ~~cash collateral hereunder as~~ such required payment will be deemed to be a ~~result~~ Prime Rate Advance to the Canadian Borrower from the Lender that accepted such Banker’s Acceptance or purchased such BA Equivalent Note. (10) The signature of any duly authorized officer of the ~~occurrence~~ Canadian Borrower on a Draft or a BA Equivalent Note may be mechanically reproduced in facsimile, and all Drafts and BA Equivalent Notes bearing such facsimile signature will be as binding upon the Canadian Borrower as if they had been manually signed by such officer, notwithstanding that such Person whose manual or facsimile signature appears on such Draft or BA Equivalent Note may no longer hold office at the date of ~~an Event~~ such Draft or BA Equivalent Note or at the date of ~~Default,~~ acceptance of such ~~amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured~~ Draft by a BA Lender or ~~waived~~at any time thereafter.

Appears in 1 contract

Samples: Credit Agreement (Just Energy Group Inc.)

Common use of Bankers’ Acceptances Clause in Contracts