Bankers’ Acceptances. (a) The Canadian Administrative Agent, promptly following receipt of a Notice of Borrowing or Notice of Continuation, requesting BA Loans, shall advise each applicable Canadian Lender of the face or principal amount and term of each BA Loan to be accepted (and purchased) or advanced by it. The aggregate face or principal amount of BA Loans to be accepted or advanced by a Canadian Lender shall be determined by the Canadian Administrative Agent by reference to that Canadian 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 Canadian Lenders shall be increased or reduced by the Canadian Administrative Agent in its sole discretion as may be necessary to ensure that the face amount of the Bankers’ Acceptance to be accepted by each applicable Canadian Lender would be C$100,000 or a whole multiple thereof. For greater certainty, the foregoing C$100,000 minimum face amount of Bankers’ Acceptances for each Lender shall not apply to BA Equivalent Loans. (b) On the date specified in a Notice of Borrowing or Notice of Continuation on which a BA Loan is to be made, the Canadian Administrative Agent shall advise the Canadian Borrower as to the Canadian 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 Canadian Borrower shall sell and each Canadian Lender shall purchase the Bankers’ Acceptance accepted by it at the applicable BA Discount Rate. Subject to clause (d) below, each Canadian Lender shall provide the Canadian Administrative Agent, for the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping Fee payable by the Canadian Borrower with respect to the Bankers’ Acceptance. (d) In the event the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6, the Canadian Administrative Agent shall make arrangements satisfactory to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the Canadian Borrower should concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds. (e) Each Canadian Lender may from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances accepted and purchased by it. (f) In order to facilitate the issuance of Bankers’ Acceptances pursuant to this Agreement, the Canadian Borrower hereby authorizes each of the Canadian Lenders, and appoints each of the Canadian Lenders as the Canadian 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 Borrowing or Notice of Continuation 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, signed, endorsed and negotiated on behalf of the Canadian Borrower by a Canadian Lender shall bind the Canadian Borrower as fully and effectively as if so performed by an Authorized Officer of the Canadian Borrower. Each draft of a Bankers’ Acceptance completed, signed or endorsed by a Canadian Lender shall mature on the last day of the term thereof. All Bankers’ Acceptances to be accepted by a particular Canadian Lender shall, at the option of such Canadian 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 Canadian Lender shall be held in safekeeping with the same degree of care as if they were such Canadian Lender’s own property being kept at the place at which they are to be held. The Canadian Borrower may, by written notice to the Canadian Administrative Agent, designate persons other than Authorized Officers authorized to give the Canadian 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 Canadian Administrative Agent of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation into, Bankers’ Acceptances shall be deemed to be sufficient authority from Authorized Officers or such designated persons for each of the Canadian Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian 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 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction. (h) The Canadian Borrower waives presentment for payment and any other defense to the payment of any amounts due to a Canadian Lender in respect of a Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason of the Bankers’ Acceptance being held, at the maturity thereof, by the Canadian Lender in its own right and the Canadian Borrower agrees not to claim any days of grace if the Canadian Lender as holder sues the Canadian Borrower on the Bankers’ Acceptance for payment of the amount payable by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature and the face amount thereof shall be due and payable on the last day of the Interest Period applicable thereto. (i) Whenever the Canadian Borrower requests a 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 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 Discount Note shall be the same as the Interest Period for Bankers’ Acceptances accepted on the same date of the Borrowing in respect of the same BA Loan; (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 Applicable Stamping Fee in respect of a Bankers’ Acceptance; and (iii) the proceeds from a BA Equivalent Loan shall be equal to the BA Discount Proceeds of the Discount Note.
Appears in 6 contracts
Samples: Credit Agreement (Sealy Corp), Credit Agreement (Sealy Corp), Credit Agreement (Sealy Corp)
Bankers’ Acceptances. (a) The Subject to the terms and conditions of this Agreement, Canadian Borrower may request a Canadian Revolving Loan denominated in Canadian Dollars by presenting drafts for acceptance and, if applicable, purchase as B/As by the Canadian Revolving Lenders.
(b) A Canadian Revolving Lender shall not be obliged to either accept any draft presented for acceptance or advance any B/A Equivalent Loan:
(i) which is drawn on, or where the Contract Period applicable thereto expires, on a day which is not a Business Day;
(ii) where the Contract Period applicable thereto matures on a day subsequent to the Canadian Revolver Termination Date;
(iii) where the Contract Period applicable thereto has a term other than approximately 30, 60, 90 or 180 days;
(iv) which is denominated in any currency other than Canadian Dollars;
(v) which is not in a form satisfactory to such Canadian Revolving Lender or Canadian Administrative Agent;
(vi) for a continuation, in respect of which the Canadian Borrower has not then paid the applicable Acceptance Fee; or
(vii) if an Unmatured Event of Default or an Event of Default has occurred and is continuing.
(c) To facilitate availment of B/A Loans, Canadian Borrower hereby appoints each Canadian Revolving Lender as its attorney to sign and endorse on its behalf (in accordance with a Notice of Canadian Borrowing or Notice of Canadian Conversion or Continuation relating to a B/A Loan pursuant to Section 2A.5 or Section 2A.6), in handwriting or by facsimile or mechanical signature as and when deemed necessary by such Canadian Revolving Lender, blank drafts in the form requested by such Canadian Revolving Lender. In this respect, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply of blank drafts for acceptance under this Agreement. Canadian Borrower recognizes and agrees that all drafts signed and/or endorsed by a Canadian Revolving Lender on behalf of Canadian Borrower shall bind Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of Canadian Borrower. Each Canadian Revolving Lender is hereby authorized (in accordance with a Notice of Canadian Borrowing or Notice of Canadian Conversion or Continuation relating to a B/A Loan) to issue such B/As endorsed in blank in such face amounts as may be determined by such Canadian Revolving Lender, provided that, the aggregate amount thereof is equal to the aggregate amount of drafts required to be accepted and purchased by such Canadian Revolving Lender. No Canadian Revolving Lender shall 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 willful misconduct of the Canadian Revolving Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record, which shall be made available to Canadian Borrower upon its request, with respect to drafts (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder, and (iv) cancelled at their respective maturities. On request by or on behalf of Canadian Borrower, a Canadian Revolving Lender shall cancel all forms of B/As which have been pre-signed or pre-endorsed on behalf of Canadian Borrower and that are held by such Canadian Revolving Lender and are not required to be issued in accordance with Canadian Borrower’s irrevocable notice. Alternatively, Canadian Borrower agrees that, at the request of Canadian Administrative Agent, promptly Canadian Borrower shall deliver to Canadian 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.
(d) Drafts of Canadian Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2A.9. Notwithstanding that any Person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian Revolving Lender or 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 Canadian Borrower.
(e) Promptly following the receipt of a Notice of Canadian Borrowing or Notice of ContinuationCanadian Conversion or Continuation specifying a Canadian Revolving Loan by way of B/As, requesting BA Loans, Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each applicable Canadian Revolving Lender of the face or principal amount and term of each BA Loan to be accepted (and purchased) or advanced by it. The aggregate face or principal amount of BA Loans to be accepted or advanced by a Canadian Lender shall be determined by the Canadian Administrative Agent by reference to that Canadian Lender’s applicable pro rata portion of the issue or advance of BA Loans, except that the aggregate face amount of Bankers’ Acceptances the B/As to be accepted by it and the applicable Canadian Lenders Contract Period (which shall be increased or reduced identical for all Canadian Revolving Lenders). In the case of Canadian Revolving Loans comprised of B/A Loans, the aggregate face amount of the B/As to be accepted by a Canadian Revolving Lender shall be in a minimum aggregate amount of Cdn.$500,000 and shall be a whole multiple of Cdn.$100,000, and such face amount shall be in the Canadian Revolving Lenders’ pro rata portions of such Canadian Revolving Loan, provided that, Canadian Administrative Agent may in its sole discretion as may be necessary increase or reduce any Canadian Revolving Lender’s portion of such B/A Loan to ensure that the face amount of the Bankers’ Acceptance to be accepted by each applicable Canadian Lender would be C$100,000 or a whole multiple thereof. For greater certainty, the foregoing C$100,000 minimum face amount of Bankers’ Acceptances for each Lender shall not apply to BA Equivalent Loansnearest Cdn.$100,000.
(bf) On the date specified Canadian Borrower may specify in a Notice of Canadian Borrowing pursuant to Section 2A.5 or a Notice of Canadian Conversion or Continuation on pursuant to Section 2A.6 that it desires that any B/A’s requested by such notice be purchased by the Canadian Revolving Lenders, in which case the Canadian Revolving Lenders shall, upon acceptance of a BA Loan is B/A by a Canadian Revolving Lender, purchase, or arrange for the purchase of, each B/A from Canadian Borrower at the Discount Rate for such Canadian Revolving Lender applicable to be made, the such B/A accepted by it and provide to Canadian Administrative Agent shall advise the Canadian Borrower as to the Canadian 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 Canadian Borrower shall sell and each Canadian Lender shall purchase the Bankers’ Acceptance accepted by it at the applicable BA Discount Rate. Subject to clause (d) below, each Canadian Lender shall provide the Canadian Administrative Agent, Proceeds for the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping . The Acceptance Fee payable by the Canadian Borrower with to a Canadian Revolving Lender under Section 3.1(d) in respect to of each B/A accepted by such Canadian Revolving Lender shall be set off against the Bankers’ AcceptanceDiscount Proceeds payable by such Canadian Revolving Lender under this Section 2A.9.
(d) In the event the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6, the Canadian Administrative Agent shall make arrangements satisfactory to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the Canadian Borrower should concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(eg) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances B/As accepted and purchased by it.
(fh) In order to facilitate If a Canadian Revolving Lender is not a chartered bank under the issuance of Bankers’ Acceptances pursuant to this Agreement, the Canadian Borrower hereby authorizes each of the Canadian Lenders, and appoints each of the Canadian Lenders as the Canadian Borrower’s attorney, to complete, sign and endorse drafts or depository bills (as defined in the Depository Bills and Notes Bank Act (Canada) (each or if a Canadian Revolving Lender notifies Canadian Administrative Agent in writing that it is otherwise unable to accept Bankers’ Acceptances, 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 Canadian Revolving Lender will, instead of Borrowing or Notice of Continuation accepting 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 purchasing Bankers’ Acceptances in accordance with the provisions of this Agreement. Drafts so completedAcceptances, signed, endorsed and negotiated on behalf of the make an advance (a “B/A Equivalent Loan”) to Canadian Borrower by a in the amount and for the same term as the draft that such Canadian Revolving Lender shall bind would otherwise have been required to accept and purchase hereunder. Each such Canadian Revolving Lender will provide to Canadian Administrative Agent the Canadian Borrower as fully and effectively as if so performed by an Authorized Officer Discount Proceeds of such B/A Equivalent Loan for the account of Canadian Borrower. Each draft such B/A 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 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 have the same economic consequences for the applicable Lenders and Canadian Borrower as the Bankers’ Acceptance which such B/A Equivalent Loan replaces). All such interest shall be paid in advance on the date such B/A Equivalent Loan is made, and will be deducted from the principal amount of such B/A Equivalent Loan in the same manner in which the discount to the purchase price of a Bankers’ Acceptance completed, signed or endorsed by a Canadian Lender shall mature on would be deducted from the last day face amount of the term thereof. All Bankers’ Acceptances to be accepted by a particular Canadian Lender shall, at the option of such Canadian 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)Acceptance.
(gi) Any Drafts to be used for Bankers’ Acceptances which are held by a Canadian Lender shall be held in safekeeping with the same degree of care as if they were such Canadian Lender’s own property being kept at the place at which they are to be held. The Canadian Borrower may, by written notice to the Canadian Administrative Agent, designate persons other than Authorized Officers authorized to give the Canadian 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 Canadian Administrative Agent of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation into, Bankers’ Acceptances shall be deemed to be sufficient authority from Authorized Officers or such designated persons for each of the Canadian Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian 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 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction.
(h) The Canadian Borrower waives presentment for payment and any other defense to the payment of any amounts due to a Canadian Revolving Lender in respect of a Bankers’ Acceptance B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of the Bankers’ Acceptance such B/A being held, at the maturity thereof, by the such Canadian Revolving Lender in its own right right, and the Canadian Borrower agrees not to claim any days of grace if the such Canadian Lender Revolving Lender, as holder holder, sues the Canadian Borrower on the Bankers’ Acceptance B/A for payment of the amount payable by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature Unless Canadian Borrower has requested and Canadian Revolving Lenders have granted a continuation of such B/A Loan in accordance with the face amount thereof shall be due and payable provisions of this Agreement, on the last day of the Interest Contract Period applicable thereto.of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, Canadian Borrower shall pay the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, Canadian Borrower shall have no further liability in respect of such B/A and such Canadian Revolving Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A.
(ij) Whenever Except as required by any Canadian Revolving Lender upon the occurrence of an Event of Default, no B/A Loan may be repaid by Canadian Borrower requests a 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 prior to the Non-Acceptance Lender’s pro rata portion of the 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 Discount Note shall be the same as the Interest Period for Bankers’ Acceptances accepted on the same expiry date of the Borrowing in respect of the same BA Contract Period applicable to such B/A Loan;
(ii) an acceptance fee will ; provided, however, that any B/A Loan may be payable in respect of a Discount Note and shall be calculated at the same rate and defeased as provided in the same manner as the Applicable Stamping Fee in respect of a Bankers’ Acceptance; and
(iii) the proceeds from a BA Equivalent Loan shall be equal proviso to the BA Discount Proceeds of the Discount NoteSection 4.3(d).
Appears in 5 contracts
Samples: Credit Agreement (Crown Holdings Inc), Credit Agreement (Crown Holdings Inc), Credit Agreement (Crown Holdings Inc)
Bankers’ Acceptances. (a) The Each Canadian Administrative AgentDollar Lender, promptly following receipt of severally and not jointly, agrees upon the terms and subject to the conditions hereof, to accept and discount Bankers' Acceptances for LGEC on any Business Day and from time to time from the Closing Date to but excluding the Commitment Termination Date, each in a Notice of Borrowing or Notice of Continuation, requesting BA Loans, shall advise each applicable Canadian Lender of face amount which when added to the face or principal amount and term of each BA Loan to be accepted (and purchased) or advanced by it. The aggregate face or principal amount of BA all Canadian Dollar Loans then outstanding to be accepted or advanced by a Canadian LGEC from such Lender shall be determined by the Canadian Administrative Agent by reference to that Canadian Lender’s applicable pro rata portion of the issue or advance of BA Loans, except that and the aggregate face amount of outstanding Bankers’ ' Acceptances to which have been accepted by such Lender, does not exceed such Lender's Canadian Dollar Credit Commitment. Furthermore, no Bankers' Acceptance shall be accepted by if, as a result thereof, either (i) the applicable sum of the aggregate principal amount of all Canadian Dollar Loans then outstanding plus the then current BA Exposure would exceed the Total Canadian Dollar Credit Commitment then in effect or (ii) the sum of the aggregate principal amount of all U.S. Dollar Loans then outstanding plus the then current L/C Exposure plus the U.S. Dollar Equivalent of the aggregate principal amount of all Canadian Dollar Loans then outstanding plus the U.S. Dollar Equivalent of the then current BA Exposure would exceed the Borrowing Base. Subject to Section 2.4(b) hereof, Bankers' Acceptances shall be accepted at such times as LGEC shall request, but the Canadian Dollar Lenders shall not be increased or reduced by the Canadian Administrative Agent in its sole discretion as may be necessary required to ensure that the face amount of the accept Bankers’ Acceptance to be accepted by ' Acceptances hereunder more often than once each applicable Canadian Lender would be C$100,000 or a whole multiple thereof. For greater certainty, the foregoing C$100,000 minimum face amount of Bankers’ Acceptances for each Lender shall not apply to BA Equivalent Loanscalendar week.
(b) On LGEC agrees to pay to each Canadian Dollar Lender an acceptance commission (the "Acceptance Fee"), with respect to each Bankers' Acceptance accepted by such Canadian Dollar Lender, calculated at a rate of 2.75% per annum on the face amount of such Bankers' Acceptance, for the period from the date specified in a Notice of Borrowing or Notice of Continuation on which a BA Loan is to be madesuch Bankers' Acceptance, the Canadian Administrative Agent shall advise the Canadian Borrower as to the Canadian Administrative Agent’s determination date of its maturity, payable in full on the date of such discounting of such Bankers' Acceptance and on the basis of a year of 365 days. Payment of the BA Discount Rate Acceptance Fee with respect to each Bankers' Acceptance created by each Canadian Lender shall be made for the BA Loans to be purchased or advanced, account of LGEC by such Canadian Lender's deducting the amount of the Acceptance Fee from the proceeds of discounting such Bankers' Acceptance as the case may becontemplated by Section 2.4(d) hereof.
(c) The LGEC shall give the Administrative Agent and the Canadian Borrower Agent prior written, facsimile or telephonic (promptly confirmed in writing) notice of each request for a Bankers' Acceptance hereunder; such notice shall sell be irrevocable. Such notice, to be effective, must be received by the Administrative Agent and each the Canadian Agent not later than 12:00 noon, New York City time on the second Business Day preceding the date on which such Bankers' Acceptance is to be made. Such notice shall specify the amount of the proposed Bankers' Acceptance, the date thereof (which shall be a Business Day) and the maturity date with respect thereto. Each Bankers' Acceptance draft tendered by LGEC for acceptance by a Canadian Dollar Lender shall purchase be in a form acceptable to the Bankers’ Acceptance accepted accepting Canadian Dollar Lenders and shall have a term of one, two or three months or, if available, six months, unless otherwise agreed to by it at the applicable BA Discount Rate. Subject to clause (d) below, each Canadian Lender shall provide all the Canadian Administrative AgentDollar Lenders. If no election of a maturity date is specified in such notice, such notice shall be deemed a request for a maturity date of one month. The term of each Banker's Acceptance shall expire on a Business Day and shall, in any event, expire no later than the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping Fee payable by the Canadian Borrower with respect tenth Business Day prior to the Bankers’ AcceptanceCommitment Termination Date.
(d) In The Canadian Agent shall promptly notify each Canadian Dollar Lender of its Pro Rata Share of each Bankers' Acceptance request under Section 2.4(c), the event date of such Bankers' Acceptance and the maturity date applicable thereto. On the date for acceptance specified in such notice, each Canadian Dollar Lender shall accept a Bankers' Acceptance draft in the amount of its Pro Rata Share of the Bankers' Acceptance request no later than 1:00 p.m. New York City time. Upon acceptance of a Bankers' Acceptance draft by a Canadian Dollar Lender, such Lender shall purchase, or arrange for the purchase of, such Bankers' Acceptance from LGEC at the Bankers' Acceptance Rate for each such Lender applicable to such Bankers' Acceptance accepted by it and provide to the Canadian Borrower requests a continuation Agent the Discount Proceeds. Upon the receipt of BA Loans for a further Interest Period, or requests conversion from such funds by the Canadian Prime Loans into BA Loans in accordance with Section 2.6Agent, the Canadian Administrative Agent shall make arrangements satisfactory disburse such funds by depositing them directly to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the Canadian Borrower should concurrently pay account specified to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceedsby LGEC in writing.
(e) Each LGEC shall pay to the Canadian Lender may from Agent on the maturity date of each Bankers' Acceptance an amount equal to the face amount of such maturing Bankers' Acceptance; provided, however, that LGEC may, at its option, so reimburse the Canadian Dollar Lenders, in whole or in part, by delivering to the Canadian Agent and the Administrative Agent no later than 10:00 a.m. New York City time two Business Days prior to time holdthe maturity date of such maturing Bankers' Acceptance, sella request to rollover such Bankers' Acceptance and by presenting drafts to the Canadian Agent for acceptance and purchase having, rediscount in the case of reimbursement in whole by replacement Bankers' Acceptances, an aggregate face amount such that the Discount Proceeds thereof will equal the face amount of such maturing Bankers' Acceptance. Prior to the Commitment Termination Date, in the event that LGEC fails to adequately reimburse the Canadian Dollar Lenders as set forth above and in Section 2.11(l), the face amount of such maturing Bankers' Acceptance shall be deemed to be converted to a Canadian Prime Rate Loan on the relevant maturity date, provided that no default or otherwise dispose Event of any Default has occurred and is continuing. If LGEC fails to adequately reimburse the Canadian Dollar Lenders as set forth above and in Section 2.11(l) after the Commitment Termination Date or all Bankers’ Acceptances accepted if an Event of Default has occurred and purchased by itis continuing, LGEC shall pay to the Canadian Agent for the benefit of the Canadian Dollar Lenders interest at 2% in excess of the rate then in effect for Canadian Prime Rate Loans.
(f) In order to facilitate LGEC renounces and shall not claim any days of grace for the issuance of Bankers’ Acceptances pursuant to this Agreement, the Canadian Borrower hereby authorizes each of the Canadian Lenders, and appoints each of the Canadian Lenders as the Canadian 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 Borrowing or Notice of Continuation 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, signed, endorsed and negotiated on behalf of the Canadian Borrower by a Canadian Lender shall bind the Canadian Borrower as fully and effectively as if so performed by an Authorized Officer of the Canadian Borrower. Each draft payment of a Bankers’ Acceptance completed' Acceptance.
(g) Pursuant to the DBNA, signed or endorsed by a Canadian Lender shall mature on the last day of the term thereof. All all Bankers’ ' Acceptances to be accepted by a particular the Canadian Lender shall, at the option of such Canadian Lender, Dollar Lenders under this Credit Agreement shall be issued in the form of a "depository bills bill" (as defined in the DBNA), deposited with the Canadian Depositorx xxr Securities Ltd. ("CDS") and will be made payable originally to CDS or its nominee. In order to give effect to the foregoing, the Canadian Agent shall establish and deposited notify LGEC and the Canadian Dollar Lenders of any additional procedures, consistent with The Depository the terms of this Credit Agreement as are necessary to accomplish such intention, including, without limitation, (x) any instrument held by the Canadian Agent or any Canadian Dollar Lender for Securities Limited pursuant the purposes of Bankers' Acceptances shall have marked prominently and legibly on its face and within its text, at or before the time of issue, the words "This is a depository bill subject to the Depository Bills and Notes Act (Canada).
"; (gy) Any Drafts to be used for Bankers’ Acceptances which are held by a Canadian Lender shall be held in safekeeping with the same degree of care as if they were such Canadian Lender’s own property being kept at the place at which they are to be held. The Canadian Borrower may, by written notice any xxxerence to the Canadian Administrative Agent, designate persons other than Authorized Officers authorized authentication of the Bankers' Acceptance will be removed; and (z) any reference to give the Canadian Administrative Agent instructions regarding the manner in which Drafts are to "bearer" will be completed removed and the times at which they are to be issued; provided however that receipt by the Canadian Administrative Agent of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation into, such Bankers’ ' Acceptances shall not be deemed to be sufficient authority from Authorized Officers marked with any words prohibiting negotiation, transfer or such designated persons for each assignment of the Canadian Lenders to complete, and issue drafts it or of an interest in accordance with such notice. None of the Canadian Administrative Agent or the Canadian 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 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdictionit.
(h) LGEC hereby appoints each Canadian Dollar Lender, acting by any authorized signatory of such Lender, the attorney of LGEC: (x) to execute for and on behalf and in the name of LGEC as drawer, drafts in such Lender's standard form; (y) to complete the amount, date and maturity date of such Bankers' Acceptances; and (z) to deposit such Bankers' Acceptances which have been accepted by such Lender with the CDS; provided, that such acts in each case are to be undertaken by such Lender in accordance with instructions given to such Lender by LGEC as provided in this Section. For the avoidance of doubt, signatures of any authorized signatory of such Lender may be mechanically reproduced in facsimile on Bankers' Acceptances and such facsimile signatures shall be binding and effective as if they had been manually executed by such authorized signatory of such Lender. Instructions from the Borrower to such Lender relating to the execution, completion, endorsement, discount and/or delivery by such Lender on behalf of the Borrower of Bankers' Acceptances shall be communicated by the Canadian Agent to such Lender in accordance with this Credit Agreement.
(i) The Canadian Borrower waives presentment Agent and the Canadian Dollar Lenders shall not be liable for payment and any other defense to the payment damage, loss or improper use of any amounts due bankers' acceptance draft endorsed in blank except for any loss arising by reason of the Canadian Agent's or such Lender's failing to a use the same standard of care in the custody of such bankers' acceptance drafts as the Canadian Agent or such Lender uses in respect the custody of its own property of a similar nature.
(j) LGEC hereby authorizes each Canadian Dollar Lender to complete, stamp, hold, sell, rediscount or otherwise dispose of all Bankers’ Acceptance ' Acceptances accepted and purchased by it pursuant to this Agreement which might exist solely Section 2.4 and Section 2.11 in accordance with the instructions provided by reason LGEC.
(k) The signatures of the any authorized signatory of LGEC on Bankers’ Acceptance being held' Acceptances may, at the maturity thereofoption of LGEC, be reproduced in facsimile and such Bankers' Acceptances bearing such facsimile signatures shall be binding on LGEC as if they had been manually signed by such authorized signatory. Notwithstanding the fact that the Person whose signature appears on any Bankers' Acceptance as a signatory is no longer an authorized signatory of LGEC at the date of issuance of a Bankers' Acceptance, or that the signature affixed is only a reproduction, 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 as if such signature had been manually applied, and any such Bankers' Acceptance so signed shall, subject to Section 2.3(i), be binding on and at the risk of LGEC; provided, however, that LGEC may at any time that the authorization of such signatory has lapsed, provide a new facsimile bearing the signature of an updated authorized signatory to be used on all future Bankers' Acceptances at which time the Canadian Lender in its own right and Dollar lenders shall no longer issue any Bankers' Acceptances bearing the Canadian Borrower agrees not to claim any days of grace if the Canadian Lender as holder sues the Canadian Borrower on the Bankers’ Acceptance for payment of the amount payable by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature and the face amount thereof shall be due and payable on the last day of the Interest Period applicable theretolapsed authorized signatory's signature.
(il) Whenever The amount of any Bankers' Acceptance shall be in an aggregate minimum principal amount of C$1,000,000 or such greater amount which is an integral multiple of C$100,000.
(m) Upon the occurrence of an Event of Default, LGEC shall forthwith pay to the Canadian Borrower requests a Loan under this Agreement by way of Bankers’ AcceptancesAgent for deposit into the Canadian Dollar Cash Collateral Account, 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 NonCanadian Dollar Lenders' maximum potential liability under then outstanding Bankers' Acceptances (the "BA Collateral Funds"). The BA Collateral Funds shall be held by the Canadian Agent for set-Acceptance Lender’s pro rata portion off against indebtedness then or thereafter owing by LGEC to the Canadian Dollar Lenders in respect of such Bankers' Acceptances. If such Event of Default is either waived or cured in compliance with the BA Loan. All terms of this Agreement applicable Credit Agreement, then the remaining BA Collateral Funds if any, shall be released to LGEC if requested by it. If LGEC fails to provide BA Collateral Funds for any Bankers’ ' Acceptances in accordance with this Section 2.3(m), the amount of such BA Collateral Funds shall apply equally bear interest, to Discount Notes evidencing the extent permitted by Applicable Law, at a rate per annum at 2% in excess of the rate then in effect for Canadian Prime Rate Loans until the date such BA Equivalent Loans with such changes as may in the context be necessary. For greater certainty:Collateral Funds are provided.
(in) Notwithstanding the term provisions of this Section 2.3, the Canadian Agent is authorized by LGEC and each Canadian Dollar Lender to allocate amongst the Canadian Dollar Lenders the Bankers' Acceptances to be issued and purchased in such manner and amounts as the Canadian Agent may, in its sole and unfettered discretion acting reasonably, consider necessary and equitable, rounding up and down, so as to ensure that no Lender is required to accept and purchase a Discount Note Bankers' Acceptance for a fraction of C$100,000, and in such event, the Canadian Dollar Lenders' respective participations in any such Bankers' Acceptances and repayments thereof shall be altered accordingly.
(o) Notwithstanding the same as provisions of this Section 2.3, the Interest Period Canadian Dollar Lenders shall not be obligated to create or discount any Bankers' Acceptance hereunder if an aggregate of more than four separate Bankers' Acceptances would be outstanding hereunder with respect to each Lender (for purposes of determining the number of Bankers’ ' Acceptances accepted outstanding, Bankers' Acceptances with different maturity dates shall be counted in different Bankers' Acceptances even if made on the same date date) or if such Bankers' Acceptance would not be eligible for discount at the Bank of Canada under applicable rules and regulations, would not meet the requirements of the Borrowing in respect of the same BA Loan;
(ii) an acceptance fee will be payable in respect DBNA or other Applicable Law, or any liability of a Discount Note Canadian Dollar Lender that would arise from the creation of such Bankers' Acceptance would constitute a deposit for which such Canadian Dollar Lender would be required to maintain reserves under Applicable Law as from time to time in effect. LGEC will indemnify and shall hold each Canadian Dollar Lender harmless from any loss or liability incurred by any of them if any Bankers' Acceptances are determined to be calculated at the same rate and in the same manner as the Applicable Stamping Fee in respect of a Bankers’ Acceptance; and
(iii) the proceeds from a BA Equivalent Loan shall be equal ineligible for discount or subject to the BA Discount Proceeds of the Discount Notereserves.
Appears in 2 contracts
Samples: Credit Agreement (Lions Gate Entertainment Corp /Cn/), Credit Agreement (Lions Gate Entertainment Corp /Cn/)
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, the Canadian Borrower may request a Borrowing denominated in Canadian Dollars by presenting drafts for acceptance and, if applicable, purchase as B/As by the Canadian Lenders.
(b) No Contract Period with respect to a B/A to be accepted and, if applicable, purchased as an Advance shall extend beyond the Maturity Date. All B/A Borrowings shall be denominated in Canadian Dollars.
(c) To facilitate availment of the B/A Advances, the Canadian Borrower hereby appoints each Canadian Lender as its attorney to sign and endorse on its behalf, in handwriting or by facsimile or mechanical signature as and when deemed necessary by such Canadian Lender, blank forms of B/As in the form requested by such Canadian Lender. The Canadian Administrative AgentBorrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Lender shall bind the Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of the Canadian Borrower. Each Canadian Lender is hereby authorized to issue such B/As endorsed in blank in such face amounts as may be determined by such Canadian Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by such Canadian Lender. No Canadian Lender shall be liable for any damage, promptly loss or other claim arising by reason of any loss or improper use of any such instrument except the gross negligence or willful misconduct of such Canadian Lender or its officers, employees, agents or representatives as determined by a court of competent jurisdiction by final and nonappealable judgment. Each Canadian Lender shall maintain a record with respect to B/As (i) voided by it for any reason, (ii) accepted and purchased by it hereunder and (iii) canceled at their respective maturities. Each Canadian Lender further agrees to retain such records in the manner and for the statutory periods provided in the various provincial or federal statutes and regulations which apply to such Canadian Lender. On request by or on behalf of the Canadian Borrower, a Canadian Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of the Canadian Borrower and which are held by such Canadian Lender and are not required to be issued in accordance with the Canadian Borrower’s irrevocable notice. At the discretion of a Canadian Lender, B/As to be accepted by such Canadian Lender may be issued in the form of “Depository Bills” within the meaning of the Depository Bills and Notes Act (Canada) and deposited with the Canadian Depository for Securities Limited (“CDS”) and may be made payable to “CDS & Co.” or in such other name as may be acceptable to CDS and thereafter dealt with in accordance with the rules and procedures of CDS, consistent with the terms of this Agreement and the Depository Bills and Notes Act (Canada). All Depository Bills so issued shall be governed by the provisions of this Section 2.5.
(d) Drafts of the Canadian 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 any of the Canadian Lenders or 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 receipt of a Notice of Borrowing or a Notice of ContinuationContinuation or Conversion of B/As, requesting BA Loans, the Canadian Administrative Agent shall so advise the Canadian Lenders and shall advise each applicable Canadian Lender of the aggregate face or principal amount and term of each BA Loan the B/As to be accepted by it and the applicable Contract Period (and purchased) or advanced by itwhich shall be identical for all Canadian Lenders). The aggregate face or principal amount of BA Loans the B/As to be accepted or advanced by a Canadian Lender shall be determined by in an integral multiple of C$100,000 and such face amount shall be in each Canadian Lender’s Applicable Percentage of such Canadian Borrowing, and each such Canadian Borrowing shall be no less than C$500,000; provided, that the Canadian Administrative Agent by reference to that may, in its sole discretion, increase or reduce any Canadian Lender’s applicable pro rata portion of such B/A to the issue or advance of BA Loans, except that the aggregate face amount of Bankers’ Acceptances to be accepted by the applicable Canadian Lenders shall be increased or reduced by the Canadian Administrative Agent in its sole discretion as may be necessary to ensure that the face amount of the Bankers’ Acceptance to be accepted by each applicable Canadian Lender would be nearest C$100,000 or a whole multiple thereof. For greater certainty, the foregoing C$100,000 minimum face amount of Bankers’ Acceptances for each Lender shall not apply to BA Equivalent Loans100,000.
(bf) On the date specified The Canadian Borrower may specify in a Notice of Borrowing or a Notice of Continuation on or Conversion pursuant to Section 2.6(a) or Section 2.6(b), respectively, that it desires that any B/As requested by such notice be purchased by the Canadian Lenders, in which a BA Loan is case the Canadian Lenders shall purchase, or arrange the purchase of, each B/A from the Canadian Borrower at the Discount Rate for such Canadian Lender applicable to be made, such B/A accepted by it and provide to the Canadian Administrative Agent shall advise the Canadian Borrower as to the Canadian 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 Canadian Borrower shall sell and each Canadian Lender shall purchase the Bankers’ Acceptance accepted by it at the applicable BA Discount Rate. Subject to clause (d) below, each Canadian Lender shall provide the Canadian Administrative Agent, Proceeds for the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping . The Acceptance Fee payable by the Canadian Borrower with to a Canadian Lender under Section 2.10(e) in respect to of each B/A accepted by such Canadian Lender shall be set off against the Bankers’ AcceptanceDiscount Proceeds payable by such Canadian Lender under this Section 2.5.
(d) In the event the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6, the Canadian Administrative Agent shall make arrangements satisfactory to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the Canadian Borrower should concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(eg) Each Canadian Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances B/As accepted and purchased by it.
(fh) In respect of Conversions into B/As, in order to facilitate satisfy the issuance continuing liability of Bankers’ Acceptances pursuant to this Agreement, the Canadian Borrower hereby authorizes each to the Canadian Lenders for the amount of the converted Canadian LendersBorrowing, each Canadian Lender shall receive and retain for its own account the Discount Proceeds of the B/As issued upon such Conversion, and appoints each the Canadian Borrower shall on the Conversion Date pay to the Canadian Administrative Agent for the account of the Canadian Lenders as an amount equal to the difference between the principal amount of the converted Canadian Borrower’s attorneyBorrowing and the aggregate Discount Proceeds from the B/As issued on such Conversion, 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 together with the applicable Notice of Borrowing or Notice of Continuation and, once so completed, signed and endorsed acceptance fees to accept them as Bankers’ Acceptances under this Agreement and then if applicable, purchase, discount or negotiate such Bankers’ Acceptances in accordance with which the provisions of this AgreementLenders are entitled pursuant to Section 2.5. Drafts so completed, signed, endorsed and negotiated on behalf In order to satisfy the continuing liability of the Canadian Borrower by to the Canadian Lenders for an amount equal to the aggregate face amount of the maturing B/As converted to another type of Borrowing, the Canadian Administrative Agent shall record the obligation of the Canadian Borrower to the Canadian Lenders as a Canadian Borrowing of the type into which such continuing liability has been converted.
(i) If a Canadian Lender shall bind notifies the Canadian Administrative Agent in writing that it is unable to accept Bankers’ Acceptances, such Canadian Lender will, instead of accepting and, if applicable, purchasing Bankers’ Acceptances, make an advance (a “B/A Equivalent Advance”) to the Canadian Borrower in the amount and for the same term as fully the draft that such Canadian Lender would otherwise have been required to accept and effectively as if so performed by an Authorized Officer purchase hereunder. Each such Canadian Lender will provide to the Canadian Administrative Agent the Discount Proceeds of such B/A Equivalent Advance for the account of the Canadian Borrower. Each draft such B/A Equivalent Advance 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 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 Advance shall have the same economic consequences for the Lenders and the Canadian Borrower as the Bankers’ Acceptance which such B/A Equivalent Advance replaces). All such interest shall be paid in advance on the date such B/A Equivalent Advance is made, and will be deducted from the principal amount of such B/A Equivalent Advance in the same manner in which the Discount Proceeds of a Bankers’ Acceptance completed, signed or endorsed by a Canadian Lender shall mature on would be deducted from the last day face amount of the term thereof. All Bankers’ Acceptances to be accepted by a particular Canadian Lender shall, at the option of such Canadian 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)Acceptance.
(g) Any Drafts to be used for Bankers’ Acceptances which are held by a Canadian Lender shall be held in safekeeping with the same degree of care as if they were such Canadian Lender’s own property being kept at the place at which they are to be held. The Canadian Borrower may, by written notice to the Canadian Administrative Agent, designate persons other than Authorized Officers authorized to give the Canadian 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 Canadian Administrative Agent of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation into, Bankers’ Acceptances shall be deemed to be sufficient authority from Authorized Officers or such designated persons for each of the Canadian Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian 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 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction.
(hj) The Canadian Borrower waives presentment for payment and any other defense to the payment of any amounts due to a Canadian Lender in respect of a Bankers’ Acceptance B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of the Bankers’ Acceptance such B/A being held, at the maturity thereof, by the such Canadian Lender in its own right and the Canadian Borrower agrees not to claim any days of grace if the such Canadian Lender as holder sues the Canadian Borrower on the Bankers’ Acceptance B/A for payment of the amount payable by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature and the face amount thereof shall be due and payable on On the last day of the Interest Contract Period applicable thereto.
(i) Whenever of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Canadian Borrower requests a Loan under this Agreement shall pay the Canadian Lender that has accepted and purchased such B/A the full face amount of such B/A (subject to Section 2.5(j) below and Section 2.7(b)), and after such payment, the Canadian Borrower shall have no further liability in respect of such B/A and such Canadian Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A.
(k) Except as required by way any Canadian Lender upon the occurrence of Bankers’ Acceptancesan Event of Default, each Non-Acceptance Lender shall, in lieu of accepting a Bankers’ Acceptance, make a BA Equivalent Loan no B/A Advance may be repaid by way of Discount Note in an amount equal the Canadian Borrower prior to the Non-Acceptance Lender’s pro rata portion of the 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 Discount Note shall be the same as the Interest Period for Bankers’ Acceptances accepted on the same expiry date of the Borrowing Contract Period applicable to such B/A Advance; provided, however, that any B/A or B/A Equivalent Advance may be defeased as provided in respect of the same BA Loan;
(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 Applicable Stamping Fee in respect of a Bankers’ Acceptance; and
(iii) the proceeds from a BA Equivalent Loan shall be equal to the BA Discount Proceeds of the Discount NoteSection 2.7(b)(ii).
Appears in 2 contracts
Samples: Credit Agreement (Nine Energy Service, Inc.), Credit Agreement (Nine Energy Service, Inc.)
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, the Canadian Borrower may request a Borrowing denominated in Canadian Dollars by presenting drafts for acceptance and, if applicable, purchase as B/As by the Canadian Lenders.
(b) No Contract Period with respect to a B/A to be accepted and, if applicable, purchased as an Advance shall extend beyond the Revolving Maturity Date. All B/A Borrowings shall be denominated in Canadian Dollars.
(c) To facilitate availment of the B/A Advances, the Canadian Borrower hereby appoints each Canadian Lender as its attorney to sign and endorse on its behalf, in handwriting or by facsimile or mechanical signature as and when deemed necessary by such Canadian Lender, blank forms of B/As in the form requested by such Canadian Lender. The Canadian Administrative AgentBorrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Lender shall bind the Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of the Canadian Borrower. Each Canadian Lender is hereby authorized to issue such B/As endorsed in blank in such face amounts as may be determined by such Canadian Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by such Canadian Lender. No Canadian Lender shall be liable for any damage, promptly loss or other claim arising by reason of any loss or improper use of any such instrument except the gross negligence or willful misconduct of such Canadian Lender or its officers, employees, agents or representatives. Each Canadian Lender shall maintain a record with respect to B/As (i) voided by it for any reason, (ii) accepted and purchased by it hereunder and (iii) canceled at their respective maturities. Each Canadian Lender further agrees to retain such records in the manner and for the statutory periods provided in the various provincial or federal statutes and regulations which apply to such Canadian Lender. On request by or on behalf of the Canadian Borrower, a Canadian Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of the Canadian Borrower and which are held by such Canadian Lender and are not required to be issued in accordance with the Canadian Borrower’s irrevocable notice. At the discretion of a Canadian Lender, B/As to be accepted by such Canadian Lender may be issued in the form of “Depository Bills” within the meaning of the Depository Bills and Notes Act (Canada) and deposited with the Canadian Depository for Securities Limited (“CDS”) and may be made payable to “CDS & Co.” or in such other name as may be acceptable to CDS and thereafter dealt with in accordance with the rules and procedures of CDS, consistent with the terms of this Agreement and the Depository Bills and Notes Act (Canada). All Depository Bills so issued shall be governed by the provisions of this Section 2.5.
(d) Drafts of the Canadian 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 any of the Canadian Lenders or 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 receipt of a Notice notice of Borrowing borrowing, continuation or Notice conversion of ContinuationB/As, requesting BA Loans, the Canadian Administrative Agent shall so advise the Canadian Lenders and shall advise each applicable Canadian Lender of the aggregate face or principal amount and term of each BA Loan the B/As to be accepted by it and the applicable Contract Period (and purchased) or advanced by itwhich shall be identical for all Canadian Lenders). The aggregate face or principal amount of BA Loans the B/As to be accepted or advanced by a Canadian Lender shall be determined by in an integral multiple of C$100,000 and such face amount shall be in each Canadian Lender’s Applicable Percentage of such Canadian Borrowing, and each such Canadian Borrowing shall be no less than $1,000,000; provided, that the Canadian Administrative Agent by reference to that may, in its sole discretion, increase or reduce any Canadian Lender’s applicable pro rata portion of such B/A to the issue nearest C$100,000.
(f) The Canadian Borrower may specify in a notice of borrowing or advance of BA Loansconversion or continuation pursuant to Section 2.6(a) or Section 2.6(b), except respectively, that the aggregate face amount of Bankers’ Acceptances to it desires that any B/As requested by such notice be accepted purchased by the applicable Canadian Lenders, in which case the Canadian Lenders shall be increased purchase, or reduced arrange the purchase of, each B/A from the Canadian Borrower at the Discount Rate for such Canadian Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent in its sole discretion as may be necessary to ensure that the face amount of the Bankers’ Acceptance to be accepted by each applicable Canadian Lender would be C$100,000 or a whole multiple thereof. For greater certainty, the foregoing C$100,000 minimum face amount of Bankers’ Acceptances for each Lender shall not apply to BA Equivalent Loans.
(b) On the date specified in a Notice of Borrowing or Notice of Continuation on which a BA Loan is to be made, the Canadian Administrative Agent shall advise the Canadian Borrower as to the Canadian 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 Canadian Borrower shall sell and each Canadian Lender shall purchase the Bankers’ Acceptance accepted by it at the applicable BA Discount Rate. Subject to clause (d) below, each Canadian Lender shall provide the Canadian Administrative Agent, Proceeds for the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping . The Acceptance Fee payable by the Canadian Borrower with to a Canadian Lender under Section 2.10(f) in respect to of each B/A accepted by such Canadian Lender shall be set off against the Bankers’ AcceptanceDiscount Proceeds payable by such Canadian Lender under this Section 2.5.
(d) In the event the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6, the Canadian Administrative Agent shall make arrangements satisfactory to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the Canadian Borrower should concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(eg) Each Canadian Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances B/As accepted and purchased by it.
(fh) In order If a Canadian Lender notifies the Canadian Administrative Agent in writing that it is unable to facilitate the issuance of accept Bankers’ Acceptances pursuant Acceptances, such Canadian Lender will, instead of accepting and, if applicable, purchasing Bankers’ Acceptances, make an advance (a “B/A Equivalent Advance”) to this Agreement, the Canadian Borrower hereby authorizes each of in the amount and for the same term as the draft that such Canadian Lender would otherwise have been required to accept and purchase hereunder. Each such Canadian Lender will provide to the Canadian Lenders, and appoints each Administrative Agent the Discount Proceeds of such B/A Equivalent Advance for the Canadian Lenders as the Canadian 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 Borrowing or Notice of Continuation 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, signed, endorsed and negotiated on behalf of the Canadian Borrower by a Canadian Lender shall bind the Canadian Borrower as fully and effectively as if so performed by an Authorized Officer account of the Canadian Borrower. Each draft such B/A Equivalent Advance 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 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 Advance shall have the same economic consequences for the Lenders and the Canadian Borrower as the Bankers’ Acceptance which such B/A Equivalent Advance replaces). All such interest shall be paid in advance on the date such B/A Equivalent Advance is made, and will be deducted from the principal amount of such B/A Equivalent Advance in the same manner in which the Discount Proceeds of a Bankers’ Acceptance completed, signed or endorsed by a Canadian Lender shall mature on would be deducted from the last day face amount of the term thereof. All Bankers’ Acceptances to be accepted by a particular Canadian Lender shall, at the option of such Canadian 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)Acceptance.
(g) Any Drafts to be used for Bankers’ Acceptances which are held by a Canadian Lender shall be held in safekeeping with the same degree of care as if they were such Canadian Lender’s own property being kept at the place at which they are to be held. The Canadian Borrower may, by written notice to the Canadian Administrative Agent, designate persons other than Authorized Officers authorized to give the Canadian 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 Canadian Administrative Agent of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation into, Bankers’ Acceptances shall be deemed to be sufficient authority from Authorized Officers or such designated persons for each of the Canadian Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian 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 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction.
(hi) The Canadian Borrower waives presentment for payment and any other defense to the payment of any amounts due to a Canadian Lender in respect of a Bankers’ Acceptance B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of the Bankers’ Acceptance such B/A being held, at the maturity thereof, by the such Canadian Lender in its own right and the Canadian Borrower agrees not to claim any days of grace if the such Canadian Lender as holder sues the Canadian Borrower on the Bankers’ Acceptance B/A for payment of the amount payable by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature and the face amount thereof shall be due and payable on On the last day of the Interest Contract Period applicable thereto.
(i) Whenever of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Canadian Borrower requests a Loan under this Agreement shall pay the Canadian Lender that has accepted and purchased such B/A the full face amount of such B/A (subject to Section 2.5(j) below and Section 2.7(b)), and after such payment, the Canadian Borrower shall have no further liability in respect of such B/A and such Canadian Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A.
(j) Except as required by way any Canadian Lender upon the occurrence of Bankers’ Acceptancesan Event of Default, each Non-Acceptance Lender shall, in lieu of accepting a Bankers’ Acceptance, make a BA Equivalent Loan no B/A Advance may be repaid by way of Discount Note in an amount equal the Canadian Borrower prior to the Non-Acceptance Lender’s pro rata portion of the 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 Discount Note shall be the same as the Interest Period for Bankers’ Acceptances accepted on the same expiry date of the Borrowing in respect of the same BA Loan;
(ii) an acceptance fee will Contract Period applicable to such B/A Advance; provided, however, that any B/A or B/A Equivalent Advance may be payable in respect of a Discount Note and shall be calculated at the same rate and defeased as provided in the same manner as the Applicable Stamping Fee in respect of a Bankers’ Acceptance; and
(iii) the proceeds from a BA Equivalent Loan shall be equal proviso to the BA Discount Proceeds of the Discount NoteSection 2.7(b).
Appears in 2 contracts
Samples: Credit Agreement (Complete Production Services, Inc.), Credit Agreement (Complete Production Services, Inc.)
Bankers’ Acceptances. (a) Pursuant to any request for a Borrowing under the Canadian Revolving Credit Facility, any Canadian Revolving Credit Borrower may request that such Borrowing be made by way of Bankers’ Acceptances, in which case such Canadian Revolving Credit Borrower may issue Bankers’ Acceptances denominated in Canadian Dollars, for purchase by the Canadian Revolving Credit Lenders hereunder, in each case in accordance with the provisions of this subsection 2.5 and in respect of any such request for a Borrowing, provided that: (i) the principal amount of Borrowing made by way of Bankers’ Acceptances shall be deemed to be the Face Amount of the drafts to be issued and accepted; and (ii) all other conditions to Borrowing set forth in subsection 2.1(a)(ii) and subsection 4.2 shall be complied with as conditions to any Borrowing by way of Bankers’ Acceptances.
(i) The applicable Canadian Administrative Revolving Credit Borrower shall notify the applicable Sub-Agent (the “Canadian Sub-Agent”) of any Borrowing by way of Bankers’ Acceptances in accordance with subsection 2.4.
(ii) To facilitate availment of the Canadian Revolving Credit Borrowings by way of Bankers’ Acceptances, promptly each Canadian Revolving Credit Borrower hereby appoints each Canadian Revolving Credit Lender as its attorney to sign and endorse on its behalf (for the purpose of acceptance and purchase of Bankers’ Acceptances pursuant to this Agreement), in handwriting or by facsimile or mechanical signature as and when deemed necessary by such Lender, blank forms of Bankers’ Acceptances. In this respect, it is each Canadian Revolving Credit Lender’s responsibility to maintain an adequate supply of blank forms of Bankers’ Acceptances for acceptance under this Agreement. Each Canadian Revolving Credit Borrower recognizes and agrees that all Bankers’ Acceptances signed and/or endorsed on its behalf by a Canadian Revolving Credit Lender 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. Each Canadian Revolving Credit Lender is hereby authorized (for the purpose of acceptance and purchase of Bankers’ Acceptances pursuant to this Agreement) to issue such Bankers’ Acceptances endorsed in blank in such Face Amounts as may be determined by such Lender; provided that the aggregate amount thereof is equal to the aggregate amount of Bankers’ Acceptances required to be accepted and purchased by such Lender. No Canadian Revolving Credit Lender shall be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except where arising from the gross negligence or willful misconduct of such Lender or its officers, employees, agents or representatives. On request by any Canadian Revolving Credit Borrower, a Canadian Revolving Credit Lender shall cancel all forms of Bankers’ Acceptances which have been pre-signed or pre-endorsed by or on behalf of such Borrower and which are held by such Lender and have not yet been issued in accordance herewith. Each Canadian Revolving Credit Lender further agrees to retain such records in the manner and/or for the statutory periods provided in the various Canadian provincial or federal statutes and regulations which apply to such Lender. Each Canadian Revolving Credit Lender shall maintain a record with respect to Bankers’ Acceptances held by it in blank hereunder, voided by it for any reason, accepted and purchased by it hereunder, and cancelled at their respective maturities. Each Canadian Revolving Credit Lender agrees to provide such records to the applicable Canadian Revolving Credit Borrower at such Borrower’s expense upon request.
(iii) Bankers’ Acceptances shall be signed by a duly authorized officer or officers of the applicable Canadian Revolving Credit Borrower or by its attorneys, including its attorneys appointed pursuant to subsection 2.5(b)(ii) above. Notwithstanding that any person whose signature appears on any Bankers’ Acceptance as a signatory for such Borrower may no longer be an authorized signatory for such Borrower at the date of issuance of a Bankers’ Acceptance, 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 Bankers’ Acceptance so signed shall be binding on such Borrower.
(iv) Promptly following receipt of a Notice notice of Canadian Revolving Credit Borrowing or Notice of ContinuationRollover/Conversion in respect of Bankers’ Acceptances, requesting BA Loans, the Canadian Sub-Agent shall advise each applicable Canadian Revolving Credit Lender of the face or principal amount and term of each BA Loan to be accepted (and purchased) or advanced by it. The aggregate face or principal amount of BA Loans to be accepted or advanced by a Canadian Lender shall be determined by the Canadian Administrative Agent by reference to that Canadian Lender’s applicable pro rata portion of the issue or advance of BA Loans, except that the aggregate face amount Face Amount of Bankers’ Acceptances to be accepted by it, the applicable terms thereof, and the BA Discount Proceeds in respect thereof. The aggregate Face Amount of Bankers’ Acceptances to be accepted by a Canadian Lenders Revolving Credit Lender in respect of any Canadian Revolving Credit Borrowing by way of Bankers’ Acceptances shall be equal to such Lender’s Canadian Revolving Credit Commitment Percentage of the aggregate Face Amount of all Bankers’ Acceptances to be accepted pursuant to such Borrowing, except that if the Face Amount of a Bankers’ Acceptance which would otherwise be accepted by a Canadian Revolving Credit Lender would not be Canadian Dollars $100,000 or a larger multiple thereof, such Face Amount shall be increased or reduced by the Canadian Administrative Sub-Agent in its sole discretion as may be necessary to ensure that the face amount nearest multiple of the Canadian Dollars $100,000.
(v) Each Bankers’ Acceptance to be accepted by a Canadian Revolving Credit Lender shall be accepted at its applicable Funding Office in Canada.
(vi) On the date of each applicable Canadian Lender would be C$100,000 or a whole multiple thereof. For greater certainty, the foregoing C$100,000 minimum face amount issuance of Bankers’ Acceptances for in accordance with this subsection 2.5, each Canadian Revolving Credit Lender shall not apply to BA Equivalent Loans.
(b) On accept and purchase from the date specified in a Notice of Borrowing or Notice of Continuation on which a BA Loan is applicable Canadian Revolving Credit Borrower each Bankers’ Acceptance to be made, accepted by it in connection with the Canadian Administrative Agent shall advise the Canadian Borrower as Revolving Credit Borrowing for a purchase price equal to the Canadian Administrative Agent’s determination applicable BA Discount Proceeds determined on the basis of the BA Discount Rate for Rate, and (except to the extent such BA Loans Discount Proceeds are being applied to be purchased or advanced, as the case may be.
(c) The Canadian Borrower shall sell and each Canadian Lender shall purchase the repay maturing Bankers’ Acceptance accepted by it at the applicable BA Discount Rate. Subject Acceptances in accordance with subsection 2.5(b)(ix)) shall remit to clause (d) below, each Canadian Lender shall provide the Canadian Administrative Agent, for the account of the Canadian Borrower, Sub-Agent in accordance with subsection 2.4 the BA Discount Proceeds so determined less the Applicable Stamping Acceptance Fee payable by the Canadian such Borrower with to such Lender under subsection 2.5(d) in respect to the of such Bankers’ AcceptanceAcceptances.
(d) In the event the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6, the Canadian Administrative Agent shall make arrangements satisfactory to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the Canadian Borrower should concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(evii) Each Canadian Revolving Credit Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances accepted and purchased by it.
it (f) In order to facilitate the issuance of Bankers’ Acceptances pursuant to this Agreement, the Canadian Borrower hereby authorizes each it being understood that no holder thereof shall have any rights or obligations hereunder or under any of the Canadian Lenders, and appoints each of the Canadian Lenders as the Canadian Borrower’s attorney, to complete, sign and endorse drafts or depository bills (as defined in the Depository Bills and Notes Act (Canada) (each other Loan Documents unless any such executed draft or xxxx being herein referred to as holder is a “Draft”) on its behalf in handwritten form or by facsimile or mechanical signature or otherwise in accordance with the applicable Notice of Borrowing or Notice of Continuation 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, signed, endorsed and negotiated on behalf of the Canadian Borrower by a Canadian Lender shall bind the Canadian Borrower as fully and effectively as if so performed by an Authorized Officer of the Canadian Borrower. Each draft of a Bankers’ Acceptance completed, signed or endorsed by a Canadian Lender shall mature on the last day of the term thereof. All Bankers’ Acceptances to be accepted by a particular Canadian Lender shall, at the option of such Canadian 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).
(gviii) Any Drafts to be used for Bankers’ Acceptances which are held by a Each Canadian Lender shall be held in safekeeping with the same degree of care as if they were such Canadian Lender’s own property being kept at the place at which they are to be held. The Canadian Borrower may, by written notice to the Canadian Administrative Agent, designate persons other than Authorized Officers authorized to give the Canadian 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 Canadian Administrative Agent of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation into, Bankers’ Acceptances shall be deemed to be sufficient authority from Authorized Officers or such designated persons for each of the Canadian Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian 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 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction.
(h) The Canadian Revolving Credit Borrower waives presentment for payment and any other defense to the payment of any amounts then due to a Canadian Revolving Credit Lender in respect of a Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason of the such Bankers’ Acceptance being held, at the maturity thereof, by the Canadian such Lender in its own right right, and the each Canadian Revolving Credit Borrower agrees not to claim any days of grace if the Canadian such Lender as holder sues the Canadian such Borrower on the Bankers’ Acceptance Acceptances for payment of the amount payable by such Borrower thereunder.
(ix) At or before 9:30 A.M. (Toronto time) two Business Days before the BA Maturity Date of any Bankers’ Acceptances, the applicable Canadian Revolving Credit Borrower shall give to the Sub-Agent notice (a “Notice of Rollover/Conversion”) specifying either that such Borrower intends to repay the maturing Bankers’ Acceptances on the applicable BA Maturity Date or that such Borrower intends to issue new Bankers’ Acceptances on the applicable BA Maturity Date to provide for the payment of the maturing Bankers’ Acceptances. If the applicable Canadian Revolving Credit Borrower fails to provide any such notice to the Canadian Sub-Agent or fails to repay the maturing Bankers’ Acceptances on the applicable BA Maturity Date, such failure shall be deemed a Notice of Rollover/Conversion for the issuance of new Bankers’ Acceptances to provide for the payment of such maturing Bankers’ Acceptances and such new Bankers’ Acceptances shall have a BA Maturity Date that is thirty days after the date of issuance thereof. Notwithstanding the foregoing, if an Event of Default has occurred and is continuing on the applicable BA Maturity Date of such maturing Bankers’ Acceptances, each Canadian Revolving Credit Borrower’s obligations in respect of maturing Bankers’ Acceptances shall be deemed to have been converted on the BA Maturity Date thereof into a Canadian Prime Rate Loan in a principal amount equal to the full Face Amount of the maturing Bankers’ Acceptances. On the BA Maturity Date of any Bankers’ Acceptance being repaid by means of the issuance of new Bankers’ Acceptances pursuant to this clause (ix) the applicable Canadian Revolving Credit Borrower thereunder. shall pay to the Sub-Agent for the account of the applicable Canadian Revolving Credit Lender an amount equal to the sum of (A) the Acceptance Fee payable in respect of such newly issued Bankers’ Acceptance and (B) the excess of the Face Amount of such maturing Bankers’ Acceptance over the BA Discount Proceeds in respect of such newly issued Bankers’ Acceptance.
(c) Each Bankers’ Acceptance shall mature mature, and the face amount Face Amount thereof shall be due and payable, on the BA Maturity Date specified in such Bankers’ Acceptance. Any overdue amount of any Bankers’ Acceptance shall bear interest, payable on demand, at the last day rate set forth in subsection 2.14(i). Any payment of a maturing Bankers’ Acceptance shall, subject to subsection 2.5(b)(ix), be made as provided in subsection 2.13(c) (notwithstanding that any Lender or any other Person may be the holder thereof at maturity) and any such payment shall satisfy the applicable Canadian Revolving Credit Borrower’s obligations under the maturing Bankers’ Acceptance to which it relates, and the Lender accepting and purchasing the applicable Bankers’ Acceptance shall thereafter be solely responsible for the payment of such Bankers’ Acceptance.
(d) A fee (an “Acceptance Fee”) shall be payable by the applicable Canadian Revolving Credit Borrower to each Canadian Revolving Credit Lender in advance (in the manner specified under this Agreement) upon the issuance of a Bankers’ Acceptance to be accepted by such Lender, or upon the purchase of an Acceptance Note by such Lender, calculated at the rate per annum equal to the Applicable Margin then in effect for Eurocurrency Rate Loans, such rate per annum to be calculated on the Face Amount of such Bankers’ Acceptance or Acceptance Note, as the case may be, and to be computed on the basis of the Interest Period number of days in the term of such Bankers’ Acceptance or Acceptance Note, as the case may be.
(e) Bankers’ Acceptances may not be prepaid. Any Canadian Revolving Credit Borrower may, however, at its option, exercisable upon not less than two Business Day’s notice to the Canadian Sub-Agent, elect to deposit with the Canadian Sub-Agent Canadian Dollars in same-day funds to be held by the Sub-Agent, pursuant to collateral arrangements reasonably satisfactory to the Canadian Sub-Agent and such Canadian Revolving Credit Borrower, for application to the payment of any Borrowing of Bankers’ Acceptances designated by such Borrower in such notice. If such a deposit is made, then such Bankers’ Acceptances shall be deemed no longer outstanding for purposes of this Agreement; provided that the amount of such deposit shall be not less than the full Face Amount of such Borrowing of Bankers’ Acceptances. Furthermore, in the event the maturity of the Loans is accelerated pursuant to Section 7, each applicable theretoCanadian Revolving Credit Borrower shall cash collateralize all outstanding Bankers’ Acceptances issued by such Borrower.
(i) Whenever It is understood that from time to time certain Schedule II Banks and Schedule III Banks may not be authorized to or may, as a matter of general corporate policy, elect not to accept Bankers’ Acceptances (each, an “Acceptance Note Lender”); accordingly, any Acceptance Note Lender may instead purchase Acceptance Notes of a Canadian Revolving Credit Borrower in accordance with the provisions of subsection 2.5(f)(ii) in lieu of accepting and purchasing Bankers’ Acceptances for its account.
(ii) In connection with any request by a Canadian Revolving Credit Borrower requests a Loan under this Agreement by way for the creation of Bankers’ Acceptances, such Borrower shall deliver to each NonAcceptance Note Lender non-interest bearing promissory notes (each, an “Acceptance Lender shall, in lieu Note”) of accepting a such Borrower having the same maturity as the Bankers’ Acceptance, make a BA Equivalent Loan by way of Discount Note Acceptances to be created and in an aggregate principal amount equal to the Non-Acceptance Lender’s pro rata portion Face Amount of the BA Loan. All terms of this Agreement applicable to Bankers’ Acceptances that would otherwise have been required to be accepted by such Acceptance Note Lender as a part of such Borrowing. Each Acceptance Note Lender hereby agrees to purchase Acceptance Notes from each Canadian Revolving Credit Borrower at a price equal to the BA Discount Proceeds determined by reference to the BA Discount Rate which would have been applicable if a Bankers’ Acceptance had been accepted by it, and such Acceptance Notes shall apply equally be governed by the provisions of this subsection 2.5 as if they were Bankers’ Acceptances. The provisions of this subsection 2.5 shall apply, with all necessary changes, to Discount Acceptance Notes evidencing BA Equivalent Loans with issued under this subsection 2.5(f)(ii).
(g) At the option of any Canadian Revolving Credit Lender, Bankers’ Acceptances under this Agreement to be accepted and purchased by such changes as Lender may be issued in the context form of depository bills for deposit with The Canadian Depository for Securities Limited pursuant to the Depository Bills and Notes Act (Canada). All depository bills so issued shall be necessary. For greater certaintygoverned by the provisions of this subsection 2.5.
(h) If the Canadian Sub-Agent or the Canadian Revolving Credit Lenders holding more than 50% of the Canadian Revolving Credit Commitments determine in good faith, which determination shall be final, conclusive and binding upon each Canadian Revolving Credit Borrower, and the Canadian Sub-Agent notifies such Borrower that, by reason of circumstances affecting the money market there is no market for Bankers’ Acceptances or Acceptance Notes or the demand for Bankers’ Acceptances or Acceptance Notes is insufficient to allow the sale or trading of the Bankers’ Acceptances or Acceptance Notes created hereunder, then:
(i) the term right of a Discount Note shall be any Canadian Revolving Credit Borrower to request the same as the Interest Period for acceptance and purchase of Bankers’ Acceptances accepted on shall be suspended until the same date Canadian Sub-Agent or the Canadian Revolving Credit Lenders holding more than 50% of the Borrowing in respect of Canadian Revolving Credit Commitments determine that the same BA Loan;circumstances causing such suspension no longer exist and the Canadian Sub-Agent so notifies each Canadian Revolving Credit Borrower; and
(ii) an acceptance fee will be payable any Notice of Canadian Revolving Credit Borrowing or Notice of Rollover/Conversion in respect of a Discount Note and Bankers’ Acceptances which are outstanding shall be calculated cancelled and such notice shall (at the same rate and option of the applicable Borrower) be deemed to be a request for a Borrowing of or conversion to Canadian Prime Rate Loans in the same manner as the Applicable Stamping Fee in respect of a Bankers’ Acceptance; and
(iii) the proceeds from a BA Equivalent Loan shall be principal amount equal to the BA Discount Proceeds that would have been payable in respect of the Discount Noterequested Bankers’ Acceptances or Acceptance Notes.
(i) The Canadian Sub-Agent shall promptly notify each Canadian Revolving Credit Borrower of the suspension of such Borrower’s right to request acceptance and purchase of Bankers’ Acceptances or Acceptance Notes and of the termination of any such suspension.
(j) In the event of any inconsistency between the provisions of this subsection 2.5 and any other provision of Section 2 or 3 with respect to Bankers’ Acceptances or Acceptance Notes, the provisions of this subsection 2.5 shall prevail.
Appears in 2 contracts
Samples: Credit Agreement (Capmark Financial Group Inc.), Credit Agreement (Capmark Finance Inc.)
Bankers’ Acceptances. (ai) The Canadian Administrative AgentSubject to subsection (ii) below, promptly following receipt of a Notice of Borrowing or Notice of Continuation, requesting BA Loans, shall advise each applicable Canadian Lender shall, not later than 1:00 p.m., Toronto, Ontario time, on the date of creation of the face or principal amount and term Bankers' Acceptances, accept drafts of each BA Loan to be accepted (and purchased) or advanced by it. The aggregate face or principal amount of BA Loans to be accepted or advanced by a Canadian Lender shall be determined by the Canadian Administrative Agent by reference Borrower which are presented to that it for acceptance in an amount equal to each Canadian Lender’s applicable pro rata portion 's Canadian Revolving Loan Commitment Percentage of the issue or advance of BA Loans, except that the aggregate face amount of Bankers’ ' Acceptances created on such date. Subject to be accepted by the applicable Canadian Lenders shall be increased or reduced by the Canadian Administrative Agent in its sole discretion as may be necessary to ensure that the face amount of the Bankers’ Acceptance to be accepted by each applicable Canadian Lender would be C$100,000 or a whole multiple thereof. For greater certainty, the foregoing C$100,000 minimum face amount of Bankers’ Acceptances for each Lender shall not apply to BA Equivalent Loans.
(b) On the date specified in a Notice of Borrowing or Notice of Continuation on which a BA Loan is to be madeprovisions hereof, the Canadian Administrative Agent shall advise the Canadian Borrower as to the Canadian Administrative Agent’s determination of the BA Discount Rate be responsible for the BA Loans to be purchased or advanced, as the case may be.
(c) The Canadian Borrower shall sell and making all necessary arrangements with each Canadian Lender shall purchase the Bankers’ Acceptance accepted by it at the applicable BA Discount Rate. Subject to clause (d) below, each Canadian Lender shall provide the Canadian Administrative Agent, for the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping Fee payable by the Canadian Borrower Lenders with respect to the stamping of Bankers’ Acceptance' Acceptances.
(dii) In Subject to Section 4.10, in the event the sole judgment of a Canadian Borrower requests Lender, if such Canadian Lender is unable to create a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans Bankers' Acceptance in accordance with Section 2.6this Agreement, the such Canadian Administrative Agent Lender shall make arrangements satisfactory give an irrevocable notice to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the Canadian Borrower should concurrently pay effect to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(e) Each Canadian Lender may from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances accepted and purchased by it.
(f) In order to facilitate the issuance of Bankers’ Acceptances pursuant to this Agreement, the Canadian Borrower hereby authorizes each of the Canadian Lenders, and appoints each of the Canadian Lenders as the Canadian 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 Borrowing or Notice of Continuation 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, signed, endorsed and negotiated on behalf of the Canadian Borrower by a Canadian Lender shall bind the Canadian Borrower as fully and effectively as if so performed by an Authorized Officer of the Canadian Borrower. Each draft of a Bankers’ Acceptance completed, signed or endorsed by a Canadian Lender shall mature on the last day of the term thereof. All Bankers’ Acceptances to be accepted by a particular Canadian Lender shall, at the option of such Canadian 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 Canadian Lender shall be held in safekeeping with the same degree of care as if they were such Canadian Lender’s own property being kept at the place at which they are to be held. The Canadian Borrower may, by written notice to the Canadian Administrative Agent, designate persons other than Authorized Officers authorized to give the Canadian 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 Canadian Administrative Agent of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation into, Bankers’ Acceptances shall be deemed to be sufficient authority from Authorized Officers or such designated persons for each of the Canadian Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian 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 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction.
(h) The Canadian Borrower waives presentment for payment and any other defense to the payment of any amounts due to a Canadian Lender in respect of a Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason of the Bankers’ Acceptance being held, at the maturity thereof, by the Canadian Lender in its own right and the Canadian Borrower agrees not prior to claim any days 10:00 a.m., Toronto, Ontario time, on the date of grace if the requested creation of the Bankers' Acceptances. If the Bankers' Acceptance was requested in connection with the Canadian Revolving Loan Commitment, such Canadian Lender as holder sues shall make available to the Canadian Borrower prior to 1:00 p.m., Toronto, Ontario time, on the date of such requested Bankers’ ' Acceptance for payment of the amount payable by the a Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature and the face amount thereof shall be due and payable on the last day of the Interest Period applicable thereto.
(i) Whenever the Canadian Borrower requests dollar loan in a 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 principal amount equal to the Non-Acceptance such Canadian Lender’s 's pro rata portion share of the BA Loan. All terms aggregate amount of this Agreement applicable Bankers' Acceptance to Bankers’ Acceptances shall apply equally be created on such date, such loan 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 Interest Period for Bankers’ Acceptances accepted on the same date of the Borrowing in respect of the same BA Loan;
(ii) an acceptance fee will be payable in respect of a Discount Note and shall be calculated at the same rate and funded in the same manner as the Applicable Stamping Fee Bankers' Acceptances provided by the other Canadian Lenders. Such loan shall have the same term as the Bankers' Acceptance for which it is a substitute 36 42 and shall bear such interest per annum throughout the term thereof as shall permit such Canadian Lender to obtain the same effective rate as if such Canadian Lender had accepted and purchased a Bankers' Acceptance at the same acceptance fee and pricing in which the Canadian Administrative Agent would have accepted and purchased on the bid side of the market, such Bankers' Acceptance at approximately 1:00 p.m., Toronto, Ontario time, on the date such loan is made. The Canadian Borrower hereby agrees that if such loan is made by a Canadian Lender interest shall be payable in advance on the date of such loan by deducting the interest payable in respect thereof from the principal amount of a Bankers’ Acceptance; and
(iii) the proceeds from a BA Equivalent Loan shall be equal to the BA Discount Proceeds of the Discount Notesuch loan.
Appears in 2 contracts
Samples: Credit Agreement (Shorewood Packaging Corp), Credit Agreement (Shorewood Packaging Corp)
Bankers’ Acceptances. (a) The Subject to the terms and conditions of this Agreement, the Parent Borrower may request a Borrowing denominated in Canadian Administrative Agentdollars by presenting drafts for acceptance and, promptly following receipt of if applicable, purchase as B/As by the Canadian Lenders.
(b) No Contract Period with respect to a Notice of Borrowing or Notice of Continuation, requesting BA Loans, shall advise each applicable Canadian Lender of the face or principal amount and term of each BA Loan B/A to be accepted and, if applicable, purchased as a Loan shall extend beyond the Maturity Date. All B/A Loans shall be denominated in Canadian dollars.
(c) To facilitate availment of the B/A Loans, the Parent Borrower hereby appoints each Canadian Lender as its attorney to sign and purchased) endorse on its behalf, in handwriting or advanced by itfacsimile or mechanical signature as and when deemed necessary by such Canadian Lender, blank forms of B/As in the form requested by such Canadian Lender. The aggregate face or principal amount of BA Loans to be accepted or advanced Parent Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Lender shall bind such Parent Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Parent Borrower. Each Canadian Lender is hereby authorized to issue such B/As endorsed in blank in such face amounts as may be determined by the Canadian Administrative Agent by reference to that such Canadian Lender’s applicable pro rata portion of the issue or advance of BA Loans, except ; provided that the aggregate face amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by such Canadian Lender. No Canadian Lender shall be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except the gross negligence or willful misconduct of such Canadian Lender. Each applicable Canadian Lender shall maintain a record with respect to B/As (i) voided by it for any reason, (ii) accepted and purchased by it hereunder and (iii) canceled at their respective maturities. Each Canadian Lender further agrees to retain such records in the manner and for the statutory periods provided in the various provincial or federal statutes and regulations which apply to such Canadian Lender. On request by or on behalf of the Parent Borrower, a Canadian Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of such Parent Borrower and which are held by such Canadian Lender and are not required to be issued in accordance with such Parent Borrower’s irrevocable notice. At the discretion of a Lender, Bankers’ Acceptances to be accepted by the applicable Canadian Lenders shall be increased or reduced by the Canadian Administrative Agent in its sole discretion as such Lender may be necessary to ensure that issued in the face amount form of “Depository Bills” within the Bankers’ Acceptance to be accepted by each applicable Canadian Lender would be C$100,000 or a whole multiple thereof. For greater certainty, the foregoing C$100,000 minimum face amount meaning of Bankers’ Acceptances for each Lender shall not apply to BA Equivalent Loans.
(b) On the date specified in a Notice of Borrowing or Notice of Continuation on which a BA Loan is to be made, the Canadian Administrative Agent shall advise the Canadian Borrower as to the Canadian 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 Canadian Borrower shall sell and each Canadian Lender shall purchase the Bankers’ Acceptance accepted by it at the applicable BA Discount Rate. Subject to clause (d) below, each Canadian Lender shall provide the Canadian Administrative Agent, for the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping Fee payable by the Canadian Borrower with respect to the Bankers’ Acceptance.
(d) In the event the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6, the Canadian Administrative Agent shall make arrangements satisfactory to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the Canadian Borrower should concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(e) Each Canadian Lender may from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances accepted and purchased by it.
(f) In order to facilitate the issuance of Bankers’ Acceptances pursuant to this Agreement, the Canadian Borrower hereby authorizes each of the Canadian Lenders, and appoints each of the Canadian Lenders as the Canadian Borrower’s attorney, to complete, sign and endorse drafts or depository bills (as defined in the Depository Bills and Notes Act (Canada) and deposited with the Canadian Depository for Securities Limited (each such executed draft or xxxx being herein referred to as a “DraftCDS”) on its behalf and may be made payable to “CDS & Co.” or in handwritten form or by facsimile or mechanical signature or otherwise such other name as may be acceptable to CDS and thereafter dealt with in accordance with the applicable Notice rules and procedures of Borrowing or Notice CDS, consistent with the terms of Continuation and, once this Agreement. All Depository Bills 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 issued shall be governed by the provisions of this AgreementSection 2.22. (d) Drafts so completed, signed, endorsed and negotiated on behalf of the Canadian Parent Borrower by a Canadian Lender shall bind the Canadian Borrower as fully and effectively as if so performed by an Authorized Officer of the Canadian Borrower. Each draft of a Bankers’ Acceptance completed, signed or endorsed by a Canadian Lender shall mature on the last day of the term thereof. All Bankers’ Acceptances to be accepted by a particular Canadian Lender shall, at the option of such Canadian 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 Canadian Lender as B/As hereunder shall be held signed as set forth in safekeeping with the same degree of care as if they were such Canadian Lender’s own property being kept at the place at which they are to this Section 2.22. Notwithstanding that any person whose signature appears on any B/A may no longer be held. The Canadian Borrower may, by written notice to the Canadian Administrative Agent, designate persons other than Authorized Officers an authorized to give the Canadian 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 Canadian Administrative Agent of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation into, Bankers’ Acceptances shall be deemed to be sufficient authority from Authorized Officers or such designated persons signatory for each any of the Canadian Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian Lenders nor Parent 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 of their respective directors, officers, employees or representatives such B/A so signed shall be liable for any action taken or omitted to be taken by any of them under this Section 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdictionbinding on such Parent Borrower.
(h) The Canadian Borrower waives presentment for payment and any other defense to the payment of any amounts due to a Canadian Lender in respect of a Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason of the Bankers’ Acceptance being held, at the maturity thereof, by the Canadian Lender in its own right and the Canadian Borrower agrees not to claim any days of grace if the Canadian Lender as holder sues the Canadian Borrower on the Bankers’ Acceptance for payment of the amount payable by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature and the face amount thereof shall be due and payable on the last day of the Interest Period applicable thereto.
(i) Whenever the Canadian Borrower requests a 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 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 Discount Note shall be the same as the Interest Period for Bankers’ Acceptances accepted on the same date of the Borrowing in respect of the same BA Loan;
(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 Applicable Stamping Fee in respect of a Bankers’ Acceptance; and
(iii) the proceeds from a BA Equivalent Loan shall be equal to the BA Discount Proceeds of the Discount Note.
Appears in 2 contracts
Samples: Syndicated Facility Agreement (Civeo Corp), Syndicated Facility Agreement (Civeo Corp)
Bankers’ Acceptances. (a) The Each Banker’s Acceptance tendered by the Canadian Administrative Agent, promptly following receipt of a Notice of Borrowing or Notice of Continuation, requesting BA Loans, shall advise each applicable Canadian Lender of the face or principal amount and term of each BA Loan to be accepted (and purchased) or advanced by it. The aggregate face or principal amount of BA Loans to be accepted or advanced Borrower for acceptance by a Canadian Lender under the Canadian Revolving Facility shall be determined by the denominated in Canadian Administrative Agent by reference to that Canadian Lender’s applicable pro rata portion of the issue or advance of BA Loans, except that the aggregate face amount of Bankers’ Acceptances to Dollars and be accepted by the applicable Canadian Lenders shall be increased or reduced by the Canadian Administrative Agent payable in its sole discretion as may be necessary to ensure that the face amount of the Bankers’ Acceptance to be accepted by each applicable Canadian Lender would be C$100,000 or a whole multiple thereofCanada. For greater certainty, the foregoing C$100,000 minimum face amount of Bankers’ Acceptances for each Lender shall not apply to BA Equivalent Loans.
(b) On the date specified in a Notice of Borrowing or Notice of Continuation on which a BA Loan is to be made, the Canadian Administrative Agent shall advise the Canadian Borrower as to the Canadian 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 Canadian Borrower shall sell and each Canadian Lender shall purchase the Bankers’ Acceptance accepted by it at the applicable BA Discount Rate. Subject to clause (d) below, each Canadian Lender shall provide the Canadian Administrative Agent, for the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping Fee payable by the Canadian Borrower with respect to the Bankers’ Acceptance.
(d) In the event the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6, the Canadian Administrative Agent shall make arrangements satisfactory to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the Canadian Borrower should concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(e) Each Canadian Lender may from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances accepted and purchased by it.
(f) In order to facilitate the issuance of Bankers’ Acceptances pursuant to this Agreement, the Canadian Borrower hereby authorizes each of the Canadian Lenders, and appoints each of acknowledges that the Canadian Lenders as may require the Canadian Borrower’s attorney, to complete, sign delivery of drafts which are in conformity with the rules and endorse drafts or depository bills procedures of a clearing house (as that term in defined in the Depository Bills and Notes Act (Canada)) used by the Canadian Lenders for the delivery, transfer and collection of bankers’ acceptances and depository bills.
(b) The Borrower shall provide for each accepted draft at its maturity to the Canadian Agent either by payment of the full principal amount thereof or through utilization of the Canadian Revolving Facility in accordance with this Agreement or through a combination thereof. The Canadian Borrower may not at any time request that any Bankers’ Acceptance be issued if the face amount of such executed draft requested Bankers’ Acceptance together with the aggregate of the other outstanding Loans under the Canadian Revolving Facility, would exceed the amount available to be drawdown under the Canadian Revolving Facility at such time. Any amount owing by the Canadian Borrower in respect of any Bankers’ Acceptance which is not paid or xxxx being herein referred provided for in accordance with the foregoing shall be deemed to be a Prime Rate Loan owing by the Canadian Borrower to the Canadian Lenders and shall be subject to all of the provisions of this Agreement applicable to a Prime Rate Loan The Canadian Borrower hereby authorizes the Canadian Lenders to debit its account by the amount required to pay any such drafts made by it and accepted as a “Draft”Bankers’ Acceptance hereunder which is not otherwise paid.
(c) If an Event of Default shall have occurred and shall then be continuing unremedied not waived by the Lenders (whether or not demand is made), the Canadian Borrower shall forthwith pay to the Canadian Agent an amount equal to the Canadian Lender’s maximum potential liability under all such outstanding Bankers’ Acceptances. Such amount shall be held by the Canadian Agent as general and continuing cash collateral for payment of the indebtedness and liability of the Canadian Borrower to the Canadian Lenders in respect of such Bankers’ Acceptances and any other obligations to the Canadian Lenders.
(d) To facilitate the acceptance of Bankers’ Acceptances hereunder, the Canadian Borrower hereby authorizes the Canadian Lenders and irrevocably appoints the Canadian Lenders as its attorney:
(i) to complete and sign on its behalf in handwritten form the Canadian Borrower’s behalf, either manually or by facsimile or mechanical signature or otherwise in accordance with signature, the applicable Notice of Borrowing or Notice of Continuation and, once so completed, signed and endorsed drafts to accept them as create the Bankers’ Acceptances under this Agreement and then if applicable(with, 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 Canadian Borrower by Lender’s discretion, the inscription “This is a Canadian Lender shall bind the Canadian Borrower as fully and effectively as if so performed by an Authorized Officer of the Canadian Borrower. Each draft of a Bankers’ Acceptance completed, signed or endorsed by a Canadian Lender shall mature on the last day of the term thereof. All Bankers’ Acceptances to be accepted by a particular Canadian Lender shall, at the option of such Canadian Lender, be issued in the form of depository bills made payable originally to and deposited with The Depository for Securities Limited pursuant xxxx subject to the Depository Bills and Notes Act (Canada));
(ii) after the acceptance thereof by the applicable Canadian Lender, to endorse on the Canadian Borrower’s behalf, either manually or by facsimile or mechanical signature, such Bankers’ Acceptances in favour of the applicable purchaser or endorsee thereof including, in the Canadian Lender’s discretion, the Canadian Lender or a clearing house (as defined by the Depository Bills and Notes Act (Canada));
(iii) to deliver such Bankers’ Acceptances to such purchaser or to deposit such Bankers’ Acceptances with such clearing house; and
(iv) to comply with the procedures and requirements established from time to time by the Canadian Lenders or such clearing house in respect of the delivery, transfer and collection of bankers’ acceptances and depository bills. All Bankers’ Acceptances so completed, signed, endorsed, delivered or deposited by a Canadian Lender on behalf of the Canadian Borrower shall be binding upon the Canadian Borrower as if completed, signed, endorsed, delivered or deposited by it. The records of the Canadian Lenders and such clearing house shall, in the absence of manifest error, be conclusively binding on the Canadian Borrower. The Lenders shall not be liable for any claim arising by reason of any loss or improper use of such drafts or Bankers’ Acceptances except for damages suffered by the Canadian Borrower caused by the intentional misconduct or gross negligence of a Canadian Lender.
(e) The Borrowers shall not claim any days of grace for the payment at maturity of any drafts presented and accepted as Bankers’ Acceptances hereunder.
(f) When the Canadian Borrower wishes to make a Borrowing by way of Bankers’ Acceptances it shall give the Canadian Agent the notice required pursuant to Section 2.2. Bankers’ Acceptances shall have terms of at least 1 month and not more than 6 months excluding days of grace (and which shall, in no event, end on a date after the Final Maturity Date) or any other term subject to market availability.
(g) Any Drafts to be used for Bankers’ Acceptances which are held by a Canadian Lender shall be held in safekeeping with On the same degree of care as if they were day it receives such Canadian Lender’s own property being kept at the place at which they are to be held. The Canadian Borrower maynotice, by written notice to the Canadian Administrative Agent, designate persons other than Authorized Officers authorized to give the Canadian Administrative Agent instructions regarding the manner shall notify by telephone or in which Drafts are to be completed and the times at which they are to be issued; provided however that receipt by the Canadian Administrative Agent of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation into, Bankers’ Acceptances shall be deemed to be sufficient authority from Authorized Officers or such designated persons for each of writing all the Canadian Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian 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 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction.
(h) The Canadian Borrower waives presentment for payment and any other defense to the payment of any amounts due to a Canadian Lender in respect of a Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason details of the Bankers’ Acceptance being heldproposed issue, at the maturity thereofspecifying, by the for each Canadian Lender in its own right and the Canadian Borrower agrees not to claim any days of grace if the Canadian Lender as holder sues the Canadian Borrower on the Bankers’ Acceptance for payment of the amount payable by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature and the face amount thereof shall be due and payable on the last day of the Interest Period applicable thereto.
(i) Whenever the Canadian Borrower requests a 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 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 Principal Amount of a Discount Note shall be the same as the Interest Period for Bankers’ Acceptances to be accepted on the same date of the Borrowing in respect of the same BA Loan;and purchased by such Canadian Lender; and
(ii) an acceptance fee will be payable in respect the term of a Discount Note and shall be calculated at the same rate and in the same manner as the Applicable Stamping Fee in respect of a such Bankers’ Acceptance; and
(iii) the proceeds from a BA Equivalent Loan shall be equal to the BA Discount Proceeds of the Discount NoteAcceptances.
Appears in 2 contracts
Samples: Credit Agreement (Firstservice Corp), Credit Agreement (Firstservice Corp)
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, the Canadian Borrower may request a Borrowing denominated in Canadian dollars by presenting drafts for acceptance and, if applicable, purchase as B/As by the Canadian Lenders.
(b) No Contract Period with respect to a B/A to be accepted and, if applicable, purchased as a Loan shall extend beyond the Maturity Date. All B/A Loans shall be denominated in Canadian dollars.
(c) To facilitate availment of the B/A Loans, the Canadian Borrower hereby appoints each Canadian Lender as its attorney to sign and endorse on its behalf, in handwriting or by facsimile or mechanical signature as and when deemed necessary by such Canadian Lender, blank forms of B/As in the form requested by such Canadian Lender. The Canadian Administrative AgentBorrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Lender shall bind the Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of the Canadian Borrower. Each Canadian Lender is hereby authorized to issue such B/As endorsed in blank in such face amounts as may be determined by such Canadian Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by such Canadian Lender. No Canadian Lender shall be liable for any damage, promptly loss or other claim arising by reason of any loss or improper use of any such instrument except the gross negligence or wilful misconduct of such Canadian Lender or its officers, employees, agents or representatives. Each Canadian Lender shall maintain a record with respect to B/As (i) voided by it for any reason, (ii) accepted and purchased by it hereunder and (iii) canceled at their respective maturities. Each Canadian Lender further agrees to retain such records in the manner and for the statutory periods provided in the various provincial or federal statutes and regulations which apply to such Canadian Lender. On request by or on behalf of the Canadian Borrower, a Canadian Lender shall cancel all forms of B/A which have been pre- signed or pre-endorsed on behalf of the Canadian Borrower and which are held by such Canadian Lender and are not required to be issued in accordance with the Canadian Borrower's irrevocable notice. At the discretion of a Lender, Bankers' Acceptances to be accepted by such Lender may be issued in the form of "Depository Bills" within the meaning of the Depository Bills and Notes Act (Canada) and deposited with the Canadian Depository for Securities Limited ("CDS") and may be made payable to "CDS & Co." or in such other name as may be acceptable to CDS and thereafter dealt with in accordance with the rules and procedures of CDS, consistent with the terms of this Agreement. All Depository Bills so issued shall be governed by the provisions of this Section 2.22.
(d) Drafts of the Canadian Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.22. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for any of the Canadian Lenders or 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 receipt of a Notice notice of Borrowing borrowing, continuation or Notice conversion of ContinuationB/As, requesting BA Loans, the Canadian Administrative Agent shall so advise the Canadian Lenders and shall advise each applicable Canadian Lender of the aggregate face or principal amount and term of each BA Loan the B/As to be accepted by it and the applicable Contract Period (and purchased) or advanced by itwhich shall be identical for all Canadian Lenders). The aggregate face or principal amount of BA Loans the B/As to be accepted or advanced by a Canadian Lender shall be determined by in an integral multiple of C$100,000 and such face amount shall be in each Canadian Lender's pro rata portion of such Canadian Borrowing; provided, that the Canadian Administrative Agent by reference to that may, in its sole discretion, increase or reduce any Canadian Lender’s applicable pro rata 's portion of such B/A to the issue nearest C$100,000.
(f) The Canadian Borrower may specify in a notice of borrowing or advance of BA Loansconversion or continuation pursuant to Section 2.03 or Section 2.10, except respectively, that the aggregate face amount of Bankers’ Acceptances to it desires that any B/As requested by such notice be accepted purchased by the applicable Canadian Lenders, in which case the Canadian Lenders shall be increased purchase, or reduced arrange the purchase of, each B/A from the Canadian Borrower at the Discount Rate for such Canadian Lender applicable to such B/A accepted 57 by it and provide to the Canadian Administrative Agent in its sole discretion as may be necessary to ensure that the face amount of the Bankers’ Acceptance to be accepted by each applicable Canadian Lender would be C$100,000 or a whole multiple thereof. For greater certainty, the foregoing C$100,000 minimum face amount of Bankers’ Acceptances for each Lender shall not apply to BA Equivalent Loans.
(b) On the date specified in a Notice of Borrowing or Notice of Continuation on which a BA Loan is to be made, the Canadian Administrative Agent shall advise the Canadian Borrower as to the Canadian 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 Canadian Borrower shall sell and each Canadian Lender shall purchase the Bankers’ Acceptance accepted by it at the applicable BA Discount Rate. Subject to clause (d) below, each Canadian Lender shall provide the Canadian Administrative Agent, Proceeds for the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping . The Acceptance Fee payable by the Canadian Borrower with to a Canadian Lender under Section 2.06 in respect to of each B/A accepted by such Canadian Lender shall be set off against the Bankers’ AcceptanceDiscount Proceeds payable by such Canadian Lender under this Section 2.22.
(d) In the event the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6, the Canadian Administrative Agent shall make arrangements satisfactory to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the Canadian Borrower should concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(eg) Each Canadian Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances B/As accepted and purchased by it.
(fh) In order If a Canadian Lender notifies the Canadian Administrative Agent in writing that it is unable to facilitate the issuance accept Bankers' Acceptances, such Canadian Lender will, instead of accepting and, if applicable, purchasing Bankers’ Acceptances pursuant ' Acceptances, make an advance (a "B/A Equivalent Loan") to this Agreement, the Canadian Borrower hereby authorizes each of in the amount and for the same term as the draft that such Canadian Lender would otherwise have been required to accept and purchase hereunder. Each such Canadian Lender will provide to the Canadian Lenders, and appoints each Administrative Agent the Discount Proceeds of such B/A Equivalent Loan for the Canadian Lenders as the Canadian 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 Borrowing or Notice of Continuation 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, signed, endorsed and negotiated on behalf of the Canadian Borrower by a Canadian Lender shall bind the Canadian Borrower as fully and effectively as if so performed by an Authorized Officer account of the Canadian Borrower. Each draft such B/A 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 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 have the same economic consequences for the 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 date such B/A Equivalent Loan is made, and will be deducted from the principal amount of such B/A Equivalent Loan in the same manner in which the Discount Proceeds of a Bankers’ ' Acceptance completed, signed or endorsed by a Canadian Lender shall mature on would be deducted from the last day face amount of the term thereof. All Bankers’ Acceptances to be accepted by a particular Canadian Lender shall, at the option of such Canadian 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)' Acceptance.
(g) Any Drafts to be used for Bankers’ Acceptances which are held by a Canadian Lender shall be held in safekeeping with the same degree of care as if they were such Canadian Lender’s own property being kept at the place at which they are to be held. The Canadian Borrower may, by written notice to the Canadian Administrative Agent, designate persons other than Authorized Officers authorized to give the Canadian 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 Canadian Administrative Agent of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation into, Bankers’ Acceptances shall be deemed to be sufficient authority from Authorized Officers or such designated persons for each of the Canadian Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian 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 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction.
(hi) The Canadian Borrower waives presentment for payment and any other defense to the payment of any amounts due to a Canadian Lender in respect of a Bankers’ Acceptance B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of the Bankers’ Acceptance such B/A being held, at the maturity thereof, by the such Canadian Lender in its own right and the Canadian Borrower agrees not to claim any days of grace if the such Canadian Lender as holder sues the Canadian Borrower on the Bankers’ Acceptance B/A for payment of the amount payable by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature and the face amount thereof shall be due and payable on On the last day of the Interest Contract Period applicable thereto.
(i) Whenever of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Canadian Borrower requests a shall pay the Canadian Lender that has accepted and purchased such B/A the full face amount of such B/A and after such payment, the Canadian Borrower shall have no further liability in respect of such B/A and such Canadian Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A.
(j) Except as required by any Canadian Lender upon the occurrence of an Event of Default, no B/A Loan under this Agreement may be repaid 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 the Canadian Borrower prior to the Non-Acceptance Lender’s pro rata portion of the 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 Discount Note shall be the same as the Interest Period for Bankers’ Acceptances accepted on the same expiry date of the Borrowing in respect of the same BA Contract Period applicable to such B/A Loan;
(ii) an acceptance fee will ; provided, however, that any B/A Loan may be payable in respect of a Discount Note and shall be calculated at the same rate and defeased as provided in the same manner as the Applicable Stamping Fee in respect of a Bankers’ Acceptance; and
(iii) the proceeds from a BA Equivalent Loan shall be equal proviso to the BA Discount Proceeds of the Discount NoteSection 2.11(a).
Appears in 2 contracts
Samples: Credit Agreement (Oil States International Inc), Credit Agreement (Oil States International Inc)
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, the Canadian Borrower may request a Borrowing denominated in Canadian Dollars by presenting drafts for acceptance and, if applicable, purchase as B/As by the Canadian Lenders.
(b) No Contract Period with respect to a B/A to be accepted and, if applicable, purchased as an Advance shall extend beyond the Maturity Date. All B/A Borrowings shall be denominated in Canadian Dollars.
(c) To facilitate availment of the B/A Advances, the Canadian Borrower hereby appoints each Canadian Lender as its attorney to sign and endorse on its behalf, in handwriting or by facsimile or mechanical signature as and when deemed necessary by such Canadian Lender, blank forms of B/As in the form requested by such Canadian Lender. The Canadian Administrative AgentBorrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Lender shall bind the Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of the Canadian Borrower. Each Canadian Lender is hereby authorized to issue such B/As endorsed in blank in such face amounts as may be determined by such Canadian Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by such Canadian Lender. No Canadian Lender shall be liable for any damage, promptly loss or other claim arising by reason of any loss or improper use of any such instrument except the gross negligence or willful misconduct of such Canadian Lender or its officers, employees, agents or representatives. Each Canadian Lender shall maintain a record with respect to B/As (i) voided by it for any reason, (ii) accepted and purchased by it hereunder and (iii) canceled at their respective maturities. Each Canadian Lender further agrees to retain such records in the manner and for the statutory periods provided in the various provincial or federal statutes and regulations which apply to such Canadian Lender. On request by or on behalf of the Canadian Borrower, a Canadian Lender shall cancel all forms of B/A which have been pre-signed or pre-endorsed on behalf of the Canadian Borrower and which are held by such Canadian Lender and are not required to be issued in accordance with the Canadian Borrower’s irrevocable notice. At the discretion of a Canadian Lender, B/As to be accepted by such Canadian Lender may be issued in the form of “Depository Bills” within the meaning of the Depository Bills and Notes Act (Canada) and deposited with the Canadian Depository for Securities Limited (“CDS”) and may be made payable to “CDS & Co.” or in such other name as may be acceptable to CDS and thereafter dealt with in accordance with the rules and procedures of CDS, consistent with the terms of this Agreement and the Depository Bills and Notes Act (Canada). All Depository Bills so issued shall be governed by the provisions of this Section 2.5.
(d) Drafts of the Canadian 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 any of the Canadian Lenders or 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 receipt of a Notice notice of Borrowing borrowing, continuation or Notice conversion of ContinuationB/As, requesting BA Loans, the Canadian Administrative Agent shall so advise the Canadian Lenders and shall advise each applicable Canadian Lender of the aggregate face or principal amount and term of each BA Loan the B/As to be accepted by it and the applicable Contract Period (and purchased) or advanced by itwhich shall be identical for all Canadian Lenders). The aggregate face or principal amount of BA Loans the B/As to be accepted or advanced by a Canadian Lender shall be determined by in an integral multiple of C$100,000 and such face amount shall be in each Canadian Lender’s Applicable Percentage of such Canadian Borrowing, and each such Canadian Borrowing shall be no less than $1,000,000; provided, that the Canadian Administrative Agent by reference to that may, in its sole discretion, increase or reduce any Canadian Lender’s applicable pro rata portion of such B/A to the issue nearest C$100,000.
(f) The Canadian Borrower may specify in a notice of borrowing or advance of BA Loansconversion or continuation pursuant to Section 2.6(a) or Section 2.6(b), except respectively, that the aggregate face amount of Bankers’ Acceptances to it desires that any B/As requested by such notice be accepted purchased by the applicable Canadian Lenders, in which case the Canadian Lenders shall be increased purchase, or reduced arrange the purchase of, each B/A from the Canadian Borrower at the Discount Rate for such Canadian Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent in its sole discretion as may be necessary to ensure that the face amount of the Bankers’ Acceptance to be accepted by each applicable Canadian Lender would be C$100,000 or a whole multiple thereof. For greater certainty, the foregoing C$100,000 minimum face amount of Bankers’ Acceptances for each Lender shall not apply to BA Equivalent Loans.
(b) On the date specified in a Notice of Borrowing or Notice of Continuation on which a BA Loan is to be made, the Canadian Administrative Agent shall advise the Canadian Borrower as to the Canadian 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 Canadian Borrower shall sell and each Canadian Lender shall purchase the Bankers’ Acceptance accepted by it at the applicable BA Discount Rate. Subject to clause (d) below, each Canadian Lender shall provide the Canadian Administrative Agent, Proceeds for the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping . The Acceptance Fee payable by the Canadian Borrower with to a Canadian Lender under Section 2.10(f) in respect to of each B/A accepted by such Canadian Lender shall be set off against the Bankers’ AcceptanceDiscount Proceeds payable by such Canadian Lender under this Section 2.5.
(d) In the event the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6, the Canadian Administrative Agent shall make arrangements satisfactory to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the Canadian Borrower should concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(eg) Each Canadian Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances B/As accepted and purchased by it.
(fh) In order If a Canadian Lender notifies the Canadian Administrative Agent in writing that it is unable to facilitate the issuance of accept Bankers’ Acceptances pursuant Acceptances, such Canadian Lender will, instead of accepting and, if applicable, purchasing Bankers’ Acceptances, make an advance (a “B/A Equivalent Advance”) to this Agreement, the Canadian Borrower hereby authorizes each of in the amount and for the same term as the draft that such Canadian Lender would otherwise have been required to accept and purchase hereunder. Each such Canadian Lender will provide to the Canadian Lenders, and appoints each Administrative Agent the Discount Proceeds of such B/A Equivalent Advance for the Canadian Lenders as the Canadian 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 Borrowing or Notice of Continuation 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, signed, endorsed and negotiated on behalf of the Canadian Borrower by a Canadian Lender shall bind the Canadian Borrower as fully and effectively as if so performed by an Authorized Officer account of the Canadian Borrower. Each draft such B/A Equivalent Advance 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 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 Advance shall have the same economic consequences for the Lenders and the Canadian Borrower as the Bankers’ Acceptance which such B/A Equivalent Advance replaces). All such interest shall be paid in advance on the date such B/A Equivalent Advance is made, and will be deducted from the principal amount of such B/A Equivalent Advance in the same manner in which the Discount Proceeds of a Bankers’ Acceptance completed, signed or endorsed by a Canadian Lender shall mature on would be deducted from the last day face amount of the term thereof. All Bankers’ Acceptances to be accepted by a particular Canadian Lender shall, at the option of such Canadian 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)Acceptance.
(g) Any Drafts to be used for Bankers’ Acceptances which are held by a Canadian Lender shall be held in safekeeping with the same degree of care as if they were such Canadian Lender’s own property being kept at the place at which they are to be held. The Canadian Borrower may, by written notice to the Canadian Administrative Agent, designate persons other than Authorized Officers authorized to give the Canadian 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 Canadian Administrative Agent of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation into, Bankers’ Acceptances shall be deemed to be sufficient authority from Authorized Officers or such designated persons for each of the Canadian Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian 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 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction.
(hi) The Canadian Borrower waives presentment for payment and any other defense to the payment of any amounts due to a Canadian Lender in respect of a Bankers’ Acceptance B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of the Bankers’ Acceptance such B/A being held, at the maturity thereof, by the such Canadian Lender in its own right and the Canadian Borrower agrees not to claim any days of grace if the such Canadian Lender as holder sues the Canadian Borrower on the Bankers’ Acceptance B/A for payment of the amount payable by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature and the face amount thereof shall be due and payable on On the last day of the Interest Contract Period applicable thereto.
(i) Whenever of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Canadian Borrower requests a Loan under this Agreement shall pay the Canadian Lender that has accepted and purchased such B/A the full face amount of such B/A (subject to Section 2.5(j) below and Section 2.7(b)), and after such payment, the Canadian Borrower shall have no further liability in respect of such B/A and such Canadian Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A.
(j) Except as required by way any Canadian Lender upon the occurrence of Bankers’ Acceptancesan Event of Default, each Non-Acceptance Lender shall, in lieu of accepting a Bankers’ Acceptance, make a BA Equivalent Loan no B/A Advance may be repaid by way of Discount Note in an amount equal the Canadian Borrower prior to the Non-Acceptance Lender’s pro rata portion of the 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 Discount Note shall be the same as the Interest Period for Bankers’ Acceptances accepted on the same expiry date of the Borrowing in respect of the same BA Loan;
(ii) an acceptance fee will Contract Period applicable to such B/A Advance; provided, however, that any B/A or B/A Equivalent Advance may be payable in respect of a Discount Note and shall be calculated at the same rate and defeased as provided in the same manner as the Applicable Stamping Fee in respect of a Bankers’ Acceptance; and
(iii) the proceeds from a BA Equivalent Loan shall be equal proviso to the BA Discount Proceeds of the Discount NoteSection 2.7(b).
Appears in 2 contracts
Samples: Credit Agreement (Complete Production Services, Inc.), Credit Agreement (Complete Production Services, Inc.)
Bankers’ Acceptances. (a) The Canadian Administrative Agent, promptly following receipt of a Notice of Borrowing or Notice of Continuation, requesting BA Loans, shall advise each applicable Canadian Lender of the face or principal amount and term of each BA Loan to be accepted (and purchased) or advanced by it. The aggregate face or principal amount of BA Loans to be accepted or advanced by a Canadian Lender shall be determined by the Canadian Administrative Agent by reference to that Canadian 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 Canadian Lenders shall be increased or reduced by the Canadian Administrative Agent in its sole discretion as may be necessary to ensure that the face amount of the Bankers’ Acceptance to be accepted by each applicable Canadian Lender would be C$100,000 or a whole multiple thereof. For greater certainty, the foregoing C$100,000 minimum face amount of Bankers’ Acceptances for each Lender shall not apply to BA Equivalent Loans.
(b) On the date specified in a Notice of Borrowing or Notice of Continuation on which a BA Loan is to be made, the Canadian Administrative Agent shall advise the Canadian Borrower as to the Canadian 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 Canadian Borrower shall sell and each Canadian Lender shall purchase the Bankers’ Acceptance accepted by it at the applicable BA Discount Rate. Subject to clause (d) below, each Canadian Lender shall provide the Canadian Administrative Agent, for the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping Fee payable by the Canadian Borrower with respect to the Bankers’ Acceptance.
(d) In the event the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6, the Canadian Administrative Agent shall make arrangements satisfactory to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the Canadian Borrower should concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(e) Each Canadian Lender may from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances accepted and purchased by it.
(f) In order to To facilitate the issuance of Bankers’ Acceptances pursuant to this Agreement, the Canadian Borrower hereby authorizes irrevocably appoints each Lender from time to time as the attorney-in-fact of the Canadian LendersBorrower to execute, endorse and appoints each deliver on behalf of the Canadian Lenders as the Canadian Borrower’s attorney, to complete, sign and endorse Borrowers drafts or depository bills (as defined in the Depository Bills and Notes Act forms prescribed by such Lender (Canadaif such Lender is a BA Lender) for Bankers’ Acceptances denominated in Cdn. Dollars (each such executed draft or xxxx that has not yet been accepted by a Lender being herein referred to as a “Draft”) on its behalf or non interest-bearing promissory notes of the Canadian Borrower in handwritten form or by facsimile or mechanical signature or otherwise in accordance with the applicable Notice favour of Borrowing or Notice of Continuation and, once so completed, signed and endorsed such Lender (if such Lender is a Non BA Lender) (each such promissory note being referred to accept them as a “BA Equivalent Note”). Each Bankers’ Acceptances under this Agreement Acceptance and then if applicable, purchase, discount or negotiate such Bankers’ Acceptances in accordance with the provisions of this Agreement. Drafts so completed, signed, endorsed BA Equivalent Note executed and negotiated delivered by a Lender on behalf of the Canadian Borrower as provided for in this Section 2.06 will be as binding upon the Borrowers as if it had been executed and delivered by a Canadian Lender shall bind duly authorized officer of each of the Borrowers.
(b) Notwithstanding the provisions of Section 2.06(a), the Canadian Borrower will from time to time as fully and effectively as if so performed required by the applicable Lender provide to (a) each BA Lender an Authorized Officer appropriate number of Drafts drawn by the Canadian BorrowerBorrower upon such 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 (b) each Non BA Lender an appropriate number of BA Equivalent Notes in favour of such Non BA Lender. The dates, maturity dates and face amounts of all Drafts and BA Equivalent Notes delivered by the Canadian Borrower must be left blank, to be completed by the Lenders as required by this Agreement. Each draft of Lender to which a Bankers’ Acceptance completed, signed Draft or endorsed BA Equivalent Note has been delivered by a the Canadian Lender shall mature on the last day of the term thereof. All Bankers’ Acceptances to be accepted by a particular Canadian Lender shall, at the option of such Canadian 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 Canadian Lender shall be held in safekeeping with Borrower will exercise the same degree of care in the custody of such Draft or BA Equivalent Note as if they were such Canadian Lender’s Lender would exercise with respect to its own property being kept at the place at which they the Drafts or BA Equivalent Notes are ordinarily kept by such Lender. Each Lender, upon the 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 requested by such Lender on a timely basis.
(c) Promptly following receipt of a Loan Notice requesting Bankers’ Acceptances, the Administrative Agent will (a) advise each BA Lender of the face amount and the term of the Draft to be heldaccepted 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 Canadian Borrower may, by written notice to the Canadian Administrative Agent, designate persons other than Authorized Officers authorized to give the Canadian 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 Canadian Administrative Agent term of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation into, all Bankers’ Acceptances shall and BA Equivalent Notes issued pursuant to any Loan Notice must be deemed to identical. Each Bankers’ Acceptance and BA Equivalent Note must be sufficient authority from Authorized Officers dated the date such Bankers’ Acceptance or such designated persons BA Equivalent Note is disbursed and issued and will be for each a term of one, two, three or six months, provided that in no event will the Canadian Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian 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 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction.
(h) The Canadian Borrower waives presentment for payment and any other defense to the payment of any amounts due to a Canadian Lender in respect term of a Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason or a BA Equivalent Note extend beyond the Maturity Date. The face amount of the Bankers’ Acceptance being held, at Draft (or the maturity thereof, by the Canadian Lender in its own right and the Canadian Borrower agrees not to claim any days of grace if the Canadian Lender as holder sues the Canadian Borrower on the Bankers’ Acceptance for payment aggregate face amount of the amount payable Drafts) to be accepted at any time by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature each Lender that is a BA Lender, and the face amount thereof of the BA Equivalent Note (or the aggregate 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; provided, that, if the face amount of a Draft or BA Equivalent Note which would otherwise be accepted or purchased by a Lender would not be Cdn$100,000 or a whole multiple thereof, the face amount shall be due and payable on increased or reduced by the last day Agent in its sole discretion to Cdn$100,000 or the nearest whole multiple of the Interest Period applicable theretothat amount, as appropriate; provided that after such issuance, no Lender shall have aggregate outstanding Loans in excess of its Commitment.
(id) Whenever Each BA Lender will complete and accept on the Canadian Borrower requests a Loan under this Agreement by way of Bankers’ Acceptances, each Non-Acceptance Lender shall, in lieu of accepting applicable date on which a Bankers’ Acceptance, make a Acceptance or BA Equivalent Loan is disbursed, a Draft having a face amount (or Drafts having the face amounts) and term advised by way of Discount Note in an amount equal the Administrative Agent pursuant to Section 2.06(c). Each applicable BA Lender will purchase on the Non-Acceptance Lender’s pro rata portion of the BA Loan. All terms of this Agreement applicable to date on which a Bankers’ Acceptances shall apply equally to Discount Notes evidencing Acceptance or 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 Interest Period for is disbursed all Bankers’ Acceptances accepted on the same date of the Borrowing in respect of the same BA Loan;
(ii) by it, for 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 Applicable Stamping Fee in respect of a Bankers’ Acceptance; and
(iii) the proceeds from a BA Equivalent Loan shall be aggregate price equal to the BA Discount Proceeds of such Bankers’ Acceptances. The Canadian Borrower 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.
(e) Each Non BA Lender, in lieu of accepting Drafts or purchasing Bankers’ Acceptances on any date such Bankers’ Acceptance is disbursed, will complete and purchase from the Canadian Borrower on the date such Bankers’ Acceptance is disbursed, of a 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 such date that such Bankers’ Acceptance is disbursed if it were a BA Lender, for a price equal to the BA Discount Proceeds of 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 exchange any BA Equivalent Note held by it for two or more BA Equivalent Notes of identical date and aggregate face amount, and the Canadian Borrower will execute and deliver to such Non BA Lender such replacement BA Equivalent Notes and such Non BA Lender will return the original BA Equivalent Note to the Canadian Borrower for cancellation.
(f) The Canadian Borrower will pay to each BA Lender in respect of each Draft tendered by the Canadian Borrower to and accepted by such BA Lender, and to each Non BA Lender in respect of each BA Equivalent Note tendered to and purchased by such 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 Canadian Borrower pursuant to this Agreement in respect of the sale of the related Bankers’ Acceptance or of such BA Equivalent Note.
(g) On the date of maturity of each Bankers’ Acceptance or BA Equivalent Note, the Borrowers will pay to the Administrative Agent, for the account of the holder of such Bankers’ Acceptance or BA Equivalent Note, in Cdn. Dollars an amount equal to the face amount of such Bankers’ Acceptance or BA Equivalent Note, as the case may be. The obligation of the Canadian 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 may be claimed by the Canadian Borrower for the payment at maturity of any Bankers’ Acceptance or BA Equivalent Note. If any 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 Cdn. Prime Rate Loan to the Canadian Borrower from the Lender that accepted such Banker’s Acceptance or purchased such BA Equivalent Note.
(h) The signature of any duly authorized officer of the 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 such Draft or BA Equivalent Note or at the date of acceptance of such Draft by a BA Lender or at any time thereafter.
Appears in 2 contracts
Samples: Credit Agreement (Atlantic Power Corp), Credit Agreement (Atlantic Power Corp)
Bankers’ Acceptances. (a) The Canadian Administrative Agent, promptly following receipt of a Notice of Borrowing or Notice of Continuation, requesting BA Loans, shall advise each applicable Canadian Lender of the face or principal amount and term of each BA Loan to be accepted (and purchased) or advanced by it. The aggregate face or principal amount of BA Loans to be accepted or advanced by a Canadian Lender shall be determined by the Canadian Administrative Agent by reference to that Canadian Lender’s applicable pro rata portion Pro Rata Percentage of the issue or advance of BA Loans, except that the aggregate face amount of Bankers’ Acceptances to be accepted by the applicable Canadian Lenders shall be increased or reduced by the Canadian Administrative Agent in its sole discretion as may be necessary to ensure that the face amount of the Bankers’ Acceptance to be accepted by each applicable Canadian Lender would be C$100,000 or a whole multiple thereof. For greater certainty, the foregoing C$100,000 requirement for a minimum face amount and a whole multiple of Bankers’ Acceptances for each Lender C$100,000 shall not apply to BA Equivalent Loans.
(b) On the date specified in a Notice of Borrowing or Notice of Continuation on which a BA Loan is to be made, the Canadian Administrative Agent shall advise the requesting Canadian Borrower as to the Canadian 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 requesting Canadian Borrower shall sell issue and each Canadian Lender shall accept and subsequently purchase the Bankers’ Acceptance accepted by it at the applicable BA Discount Rate. Subject to clause (d) below, each Canadian Lender shall provide the Canadian Administrative Agent, for the account of the requesting Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping Acceptance Fee payable by the such Canadian Borrower with respect to the Bankers’ Acceptance.
(d) In the event the requesting Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6subsection 6.5, the Canadian Administrative Agent shall make arrangements satisfactory to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the requesting Canadian Borrower should shall concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(e) Each Canadian Lender may from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances accepted and purchased by it.
(f) In order to facilitate the issuance of Bankers’ Acceptances pursuant to this Agreement, the each Canadian Borrower hereby authorizes each of the Canadian Lenders, and appoints each of the Canadian Lenders as the such Canadian 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 Borrowing or Notice of Continuation 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, signed, endorsed and negotiated on behalf of the Canadian Borrower Borrowers by a Canadian Lender shall bind the Canadian Borrower Borrowers as fully and effectively as if so performed by an Authorized a Responsible Officer of the Canadian BorrowerBorrowers. Each draft of a Bankers’ Acceptance completed, signed or endorsed by a Canadian Lender shall mature on the last day of the term thereof. All Bankers’ Acceptances to be accepted by a particular Canadian Lender shall, at the option of such Canadian 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 Canadian Lender shall be held in safekeeping with the same degree of care as if they were such Canadian Lender’s own property being kept at the place at which they are to be held. The Each Canadian Borrower may, by written notice to the Canadian Administrative Agent, designate persons other than Authorized Responsible Officers authorized to give the Canadian 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 provided, however, that receipt by the Canadian Administrative Agent of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation into, into Bankers’ Acceptances shall be deemed to be sufficient authority from Authorized Responsible Officers or such designated persons for each of the Canadian Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian 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 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction.
(h) The Canadian Borrower waives presentment for payment and any other defense to the payment of any amounts due to a Canadian Lender in respect of a Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason of the Bankers’ Acceptance being held, at the maturity thereof, by the Canadian Lender in its own right and the Canadian Borrower agrees not to claim any days of grace if the Canadian Lender as holder sues the Canadian Borrower on the Bankers’ Acceptance for payment of the amount payable by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature and the face amount thereof shall be due and payable on the last day of the Interest Period applicable thereto.
(i) Whenever the Canadian Borrower requests a 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 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 Discount Note shall be the same as the Interest Period for Bankers’ Acceptances accepted on the same date of the Borrowing in respect of the same BA Loan;
(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 Applicable Stamping Fee in respect of a Bankers’ Acceptance; and
(iii) the proceeds from a BA Equivalent Loan shall be equal to the BA Discount Proceeds of the Discount Note.subsection 6.19
Appears in 1 contract
Samples: Credit and Guarantee Agreement (Reebok International LTD)
Bankers’ Acceptances. (a) The Canadian Administrative Agent, promptly following receipt of a Notice of Borrowing or Notice of Continuation, requesting BA Loans, shall advise each applicable Canadian Lender of the face or principal amount and term of each BA Loan to be accepted (and purchased) or advanced by it. The aggregate face or principal amount of BA Loans to be accepted or advanced by a Canadian Lender shall be determined by the Canadian Administrative Agent by reference to that Canadian 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 Canadian Lenders shall be increased or reduced by the Canadian Administrative Agent in its sole discretion as may be necessary to ensure that the face amount of the Bankers’ Acceptance to be accepted by each applicable Canadian Lender would be C$100,000 or a whole multiple thereof. For greater certainty, the foregoing C$100,000 requirement for a minimum face amount and a whole multiple of Bankers’ Acceptances for each Lender C$100,000 shall not apply to BA Equivalent Loans.
(b) On the date specified in a Notice of Borrowing or Notice of Continuation on which a BA Loan is to be made, the Canadian Administrative Agent shall advise the Canadian Borrower as to the Canadian 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 Canadian Borrower shall sell issue and each Canadian Lender shall accept and subsequently purchase the Bankers’ Acceptance accepted by it at the applicable BA Discount Rate. Subject to clause (d) below, each Canadian Lender shall provide the Canadian Administrative Agent, for the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping Fee payable by the Canadian Borrower with respect to the Bankers’ Acceptance.
(d) In the event the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6, the Canadian Administrative Agent shall make arrangements satisfactory to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the Canadian Borrower should shall concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(e) Each Canadian Lender may from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances accepted and purchased by it.
(f) In order to facilitate the issuance of Bankers’ Acceptances pursuant to this Agreement, the Canadian Borrower hereby authorizes each of the Canadian Lenders, and appoints each of the Canadian Lenders as the Canadian 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 Borrowing or Notice of Continuation 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, signed, endorsed and negotiated on behalf of the Canadian Borrower by a Canadian Lender shall bind the Canadian Borrower as fully and effectively as if so performed by an Authorized Officer of the Canadian Borrower. Each draft of a Bankers’ Acceptance completed, signed or endorsed by a Canadian Lender shall mature on the last day of the term thereof. All Bankers’ Acceptances to be accepted by a particular Canadian Lender shall, at the option of such Canadian 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 Canadian Lender shall be held in safekeeping with the same degree of care as if they were such Canadian Lender’s own property being kept at the place at which they are to be held. The Canadian Borrower may, by written notice to the Canadian Administrative Agent, designate persons other than Authorized Officers authorized to give the Canadian 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 provided, however, that receipt by the Canadian Administrative Agent of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation into, Bankers’ Acceptances shall be deemed to be sufficient authority from Authorized Officers or such designated persons for each of the Canadian Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian 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 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction.
(h) The Canadian Borrower waives presentment for payment and any other defense to the payment of any amounts due to a Canadian Lender in respect of a Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason of the Bankers’ Acceptance being held, at the maturity thereof, by the Canadian Lender in its own right and the Canadian Borrower agrees not to claim any days of grace if the Canadian Lender as holder sues the Canadian Borrower on the Bankers’ Acceptance for payment of the amount payable by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature and the face amount thereof shall be due and payable on the last day of the Interest Period applicable thereto.
(i) Whenever the Canadian Borrower requests a 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 BA Loan. All terms of this Agreement applicable to Bankers’ Acceptances and Drafts 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 Interest Period for Bankers’ Acceptances accepted on the same date of the Borrowing in respect of the same BA Loan;
(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 Applicable Stamping Fee in respect of a Bankers’ Acceptance; and
(iii) the proceeds from a BA Equivalent Loan shall be equal to the BA Discount Proceeds of the Discount Note.
Appears in 1 contract
Samples: Credit Agreement (Jostens IH Corp.)
Bankers’ Acceptances. (a) The Canadian Administrative Agent, promptly following receipt of a Notice of Borrowing or Notice of Continuation, requesting BA Loans, shall advise each applicable Borrowers may issue Bankers’ Acceptances denominated in Canadian Lender of the face or principal amount Dollars for acceptance and term of each BA Loan to be accepted (and purchased) or advanced by it. The aggregate face or principal amount of BA Loans to be accepted or advanced by a Canadian Lender shall be determined purchase by the Canadian Administrative Agent by reference to that Canadian Lender’s applicable pro rata portion Revolving Lenders in accordance with the provisions of the issue or advance of BA LoansSection 2.01, except that the aggregate face amount of Bankers’ Acceptances to be accepted by the applicable Canadian Lenders shall be increased or reduced by the Canadian Administrative Agent in its sole discretion as may be necessary to ensure that the face amount of the Bankers’ Acceptance to be accepted by each applicable Canadian Lender would be C$100,000 or a whole multiple thereof. For greater certainty, the foregoing C$100,000 minimum face amount of Bankers’ Acceptances for each Lender shall not apply to BA Equivalent LoansSection 2.03 and this Section 2.21.
(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 shall extend beyond the 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.
(c) On the each Borrowing date specified in a Notice of Borrowing or Notice of Continuation on which a BA Loan is Bankers’ Acceptances are to be madeaccepted, the Canadian Administrative Agent shall advise the relevant Canadian Borrower as to the Canadian Administrative Agent’s determination of the BA applicable Discount Rate for the BA Loans Bankers’ Acceptances which any of the Canadian Revolving Lenders have agreed to be purchased or advanced, as the case may bepurchase.
(cd) The Each Canadian Borrower shall sell and each Canadian Revolving Lender shall agrees to purchase the a Bankers’ Acceptance accepted by it it. The relevant Canadian Borrower shall sell, and such Canadian Revolving Lender shall purchase, the Bankers’ Acceptance at the applicable BA Discount Rate. Subject to clause (d) below, each Such Canadian Revolving Lender shall provide to the Canadian Administrative Agent, for Funding Office the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping Acceptance Fee payable by the relevant Canadian Borrower with respect to the such Bankers’ Acceptance.
(d) In . Such proceeds will then be made available to the event the relevant Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6, by the Canadian Administrative Agent shall make arrangements satisfactory to it to ensure crediting an account as directed by the BA Discount Proceeds from relevant Canadian Borrower with the replacement BA Loans are applied to repay the face amount aggregate of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the Canadian Borrower should concurrently pay amounts made available to the Canadian Administrative Agent any positive difference between by such Canadian Revolving Lenders and in like funds as received by the Maturing Amount and such BA Discount ProceedsCanadian Administrative Agent.
(e) Each Canadian 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) In order To facilitate borrowings under the Canadian Facility to facilitate the issuance Canadian Borrowers by way of Bankers’ Acceptances pursuant to this AgreementB/As, the each Canadian Borrower hereby authorizes each of the Canadian Lenders, and appoints each of the Canadian Lenders Revolving Lender as the Canadian Borrower’s attorney, its 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 behalf, in handwritten form handwriting or by facsimile or mechanical signature or otherwise in accordance with the applicable Notice as and when deemed necessary by such Canadian Revolving Lender, blank forms of Borrowing or Notice B/As. In this respect, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply of Continuation and, once so completed, signed and endorsed to accept them as Bankers’ Acceptances blank forms of B/As for acceptance 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 Each Canadian Borrower recognizes and agrees that all B/As required to be accepted and purchased by any Canadian Revolving Lender and which are signed and/or endorsed on its behalf by a Canadian Revolving Lender shall bind the such Canadian Borrower as fully and effectively effectually as if so performed signed in the handwriting of and duly issued by an Authorized Officer the proper signing officers of the such Canadian Borrower. Each draft Canadian Revolving Lender is hereby authorized to issue such B/As endorsed in blank in such face amounts as may be determined by such Canadian Revolving Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by such Canadian Revolving Lender. No Canadian Revolving Lender shall be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except the gross negligence or willful misconduct of such Canadian Revolving Lender or its officers, employees, agents or representatives. On request by the relevant Canadian Borrower, an Canadian Revolving Lender shall cancel all forms of B/As which have been pre-signed or pre-endorsed by or on behalf of such relevant Canadian Borrower and which are held by such Canadian Revolving Lender and have not yet been issued in accordance herewith. Each Canadian Revolving Lender shall maintain a record with respect to B/As held by it in blank hereunder, voided by it for any reason, accepted and purchased by it hereunder, and cancelled at their respective maturities. Each Canadian Revolving Lender agrees to provide such records to the relevant Canadian Borrower at such Canadian Borrower’s expense upon request.
(g) Drafts drawn by a Canadian Borrower to be accepted as Bankers’ Acceptances shall be signed by a duly authorized officer or officers of such Canadian Borrower or the Borrower Representative or by their respective attorneys, including attorneys appointed pursuant to Section 2.21(f) above. Notwithstanding that any Person whose signature appears on any Bankers’ Acceptance may no longer be an authorized signatory for such Canadian Borrower or the Borrower Representative, as applicable, at the time of issuance of a Bankers’ Acceptance, that signature shall nevertheless be valid and sufficient for all purposes as if the authority had remained in force at the time of issuance and any Bankers’ Acceptance completed, so signed or endorsed by a Canadian Lender shall mature be binding on the last day relevant Canadian Borrower.
(h) The Canadian Administrative Agent, promptly following receipt of a notice of Borrowing, continuation or conversion by way of Bankers’ Acceptances, shall advise the applicable Canadian Revolving Lenders of the term thereofnotice and shall advise each such Canadian Revolving Lender of the face amount of Bankers’ Acceptances to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). All The aggregate face amount of Bankers’ Acceptances to be accepted by a particular Canadian Revolving Lender shall, at shall be determined by the option of Administrative Agent by reference to such Canadian Revolving Lender, be issued in ’s Applicable Percentage of the form issue 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 Acceptances, except that, if the face amount of a Bankers’ Acceptance which are held would otherwise be accepted by a Canadian Revolving Lender would not be Cdn.$100,000, or a whole multiple thereof, the face amount shall be held in safekeeping with the same degree of care as if they were such Canadian Lender’s own property being kept at the place at which they are to be held. The Canadian Borrower may, by written notice to the Canadian Administrative Agent, designate persons other than Authorized Officers authorized to give the Canadian Administrative Agent instructions regarding the manner in which Drafts are to be completed and the times at which they are to be issued; provided however that receipt increased or reduced by the Canadian Administrative Agent of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation intoin its sole discretion to Cdn.$l00,000, Bankers’ Acceptances shall be deemed to be sufficient authority from Authorized Officers or such designated persons for each of the Canadian Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian Lenders nor any nearest whole multiple of their respective directorsthat amount, officers, employees or representatives shall be liable for any action taken or omitted to be taken by any of them under this Section 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdictionappropriate.
(hi) The Each Canadian Borrower waives presentment for payment and any other defense to the payment of any amounts due to a Canadian Revolving Lender in respect of a Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason of the Bankers’ Acceptance being held, at the maturity thereof, by the such Canadian Revolving Lender in its own right and the each Canadian Borrower agrees not to claim any days of grace if the such Canadian Revolving Lender as holder sues the such Canadian Borrower on the Bankers’ Acceptance for payment of the amount payable by the such Canadian Borrower thereunder. Each Bankers’ Acceptance On the specified maturity date of a B/A, or the date of any prepayment thereof in accordance with this Agreement, if earlier, the relevant Canadian Borrower shall mature and pay to such Canadian Revolving Lender that has accepted such B/A the full face amount thereof of such B/A (or shall make provision for payment by way of conversion or continuation in accordance with Section 2.08) in full and absolute satisfaction of its obligations with respect to such B/A, and after such payment, the relevant Canadian 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 such Canadian Revolving Lender shall be entitled to all benefits of, and will make and otherwise be responsible for all payments due and payable on to the last day of the Interest Period applicable thereto.redeeming holder or any third parties under, such B/A.
(ij) Whenever the a Canadian Borrower requests a Loan under this Agreement borrowing by way of Bankers’ Acceptances, each Non-Acceptance Non BA Lender shall, in lieu of accepting a Bankers’ Acceptanceand purchasing any B/As, make a Loan (a “BA Equivalent Loan”) to such Canadian 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 Canadian Administrative Agent the amount of Discount Proceeds of such BA Equivalent Loan by way for the account of the relevant Canadian Borrower in the same manner as such Lender would have provided the Discount Note 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 relevant Canadian 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, and will be deducted from the principal amount equal of such BA Equivalent Loan in 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 Non-Acceptance Lender’s pro rata portion repayment requirements of this Agreement, on the last day of the relevant Contract Period for such BA Equivalent Loan, the relevant Canadian 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. All Each Non BA Lender may, at its discretion, request in writing to the Canadian Administrative Agent and the relevant Canadian 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 shall also be applicable, mutatis mutandis, to BA Equivalent Loans, and notwithstanding any other provision of this Agreement, all references to principal amounts or any repayment or prepayment of any Loans that are applicable to B/As or BA Drawings shall be deemed to refer to the full face amount thereof in the 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 2.21(f) relating to their execution by the Canadian 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 Interest Contract Period for Bankers’ Acceptances accepted and purchased on the same Borrowing date of the Borrowing in respect of the same BA Loanborrowing;
(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 Applicable Stamping Acceptance Fee in respect of a Bankers’ Acceptance; and
(iii) the proceeds from Discount Rate applicable to a BA Equivalent Loan Discount Note shall be the Discount Rate applicable to Bankers’ Acceptances accepted by a Canadian 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, as the case may be, in respect of the same borrowing for the relevant Contract Period.
(l) At the option of the relevant Canadian Borrower and any Canadian Revolving Lender, Bankers’ Acceptances under this Agreement to be accepted by such Canadian 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). All depository bills so issued shall be governed by the provisions of this Section 2.21.
(m) Upon acceptance of a Bankers’ Acceptance by a Canadian Revolving Lender, the Canadian Borrowers shall pay to the Canadian Administrative Agent on behalf of such Canadian Revolving Lender a fee (the “Acceptance Fee”) calculated on the face amount of the Bankers’ Acceptance at a rate per annum equal to the BA Discount Proceeds Applicable Rate on the basis of the Discount Notenumber of days in the Contract Period for such Bankers’ Acceptance. Any adjustment to the Acceptance Fee (including any adjustment as necessary to reflect the operation of Section 2.13(f)) shall be 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 Canadian Borrowers to the Canadian Administrative Agent on behalf of the Canadian 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 Canadian Revolving Lender to the relevant Canadian Borrower, through the Canadian Administrative Agent, on the last day of the Contract Period of the relevant Bankers’ Acceptance.
Appears in 1 contract
Bankers’ Acceptances. (a) The Canadian Administrative AgentTo facilitate the procedures contemplated herein, promptly following receipt of a Notice of Borrowing or Notice of Continuation, requesting BA Loans, Zale Canada shall advise each applicable Canadian Lender of the face or principal amount and term of each BA Loan to be accepted (and purchased) or advanced by it. The aggregate face or principal amount of BA Loans to be accepted or advanced by a Canadian Lender shall be determined by the Canadian Administrative Agent by reference to that Canadian 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 Canadian Lenders shall be increased or reduced by the Canadian Administrative Agent in its sole discretion as may be necessary to ensure that the face amount of the Bankers’ Acceptance to be accepted by each applicable Canadian Lender would be C$100,000 or a whole multiple thereof. For greater certainty, the foregoing C$100,000 minimum face amount of Bankers’ Acceptances for each Lender shall not apply to BA Equivalent Loans.
(b) On the date specified in a Notice of Borrowing or Notice of Continuation on which a BA Loan is to be made, the Canadian Administrative Agent shall advise the Canadian Borrower as to the Canadian 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 Canadian Borrower shall sell and each Canadian Lender shall purchase the Bankers’ Acceptance accepted by it at the applicable BA Discount Rate. Subject to clause (d) below, each Canadian Lender shall provide the Canadian Administrative Agent, for the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping Fee payable by the Canadian Borrower with respect to the Bankers’ Acceptance.
(d) In the event the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6, the Canadian Administrative Agent shall make arrangements satisfactory to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the Canadian Borrower should concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(e) Each Canadian Lender may from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances accepted and purchased as required by it.
(f) In order to facilitate the issuance of Bankers’ Acceptances pursuant to this Agreement, the Canadian Borrower hereby authorizes each of Agent provide to the Canadian LendersAgent, and appoints each of which shall then distribute to the Canadian Lenders as the applicable, an appropriate number of executed drafts drawn by Zale Xxxada upon each Canadian Borrower’s attorneyLender and 40 -33- endorsed by Zale Xxxada as payee, to complete, sign and endorse drafts or depository bills (as defined in the Depository Bills and Notes Act (Canada) form prescribed by such Canadian Lender for Bankers' Acceptances denominated in Canadian Dollars (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 Borrowing or Notice of Continuation 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, signed, endorsed and negotiated on behalf of the Canadian Borrower which has not yet been accepted by a Canadian Lender is referred to herein as a "Draft"). The dates, maturity dates and principal amounts of all Drafts delivered by Zale Canada shall bind be left blank, to be completed by the Canadian Borrower Lenders as fully and effectively as if so performed by an Authorized Officer of the Canadian Borrowerrequired hereby. Each draft of a Bankers’ Acceptance completed, signed or endorsed by a Canadian Lender shall mature on the last day of the term thereof. All Bankers’ Acceptances to be accepted by a particular Canadian Lender shall, at the option of such Canadian 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 Canadian Lender shall be held in safekeeping with by each Canadian Lender subject to the same degree of care as if they were such Canadian Lender’s 's own property being kept at the place at which they the Drafts are ordinarily kept by such Lender. No Canadian Lender shall be liable for its failure to be held. The Canadian Borrower mayaccept a Draft as required hereby if the cause of such failure is, by written notice in whole or in part, due to the failure of Zale Xxxada to provide Drafts to the Canadian Administrative Agent on a timely basis.
(b) The Canadian Agent, designate persons other than Authorized Officers authorized promptly following receipt of a Canadian Loan Request requesting Bankers' Acceptances, shall (i) advise each Canadian Lender of the face amount and term of each Draft to give be accepted by it, and (ii) advise each Canadian Lender whether the Canadian Administrative Agent instructions regarding Lenders are required by such Canadian Loan Request to purchase the manner in Bankers' Acceptances accepted by them. The face amount of each Bankers' Acceptance shall be C$100,000 or any whole multiple thereof, and the aggregate face amount of Bankers' Acceptances issued pursuant to any Canadian Loan Request shall not be less than C$1,000,000. Each Bankers' Acceptance shall be dated the Drawdown Date on which it is issued, and shall be for a term of 30, 60, 90 or 180 days. The aggregate face amount of the Drafts are to be completed and the times accepted at which they are to any time by a Canadian Lender, shall be issued; provided however that receipt determined by the Canadian Administrative Agent based upon the amounts of the respective Commitments, except that, if the face amount of any Draft to be accepted by a Canadian Lender determined as aforesaid, would not be C$100,000 or a whole multiple thereof, the Canadian Agent in its sole discretion may increase such face amount to the nearest whole multiple of C$100,000 or may reduce such face amount to the nearest whole multiple of C$100,000.
(c) Each Canadian Lender shall complete and accept on the applicable Drawdown Date Drafts having the face amounts and term advised by the Canadian Agent pursuant to Section 4.10(b). If the Canadian Lenders have been required in the applicable Canadian Loan Request to purchase the Bankers' Acceptances accepted by them, each Canadian Lender shall purchase on the applicable Drawdown Date the Bankers' Acceptances for a price equal to the BA Discount Proceeds thereof. In all other cases, it shall be the responsibility of Zale Canada to arrange in accordance with normal market practice for the sale on each Drawdown Date of the Bankers' Acceptances issued by it on such Drawdown Date, and for such purpose Zale Xxxada shall advise the Canadian Agent (which shall promptly give the relevant particulars to each Canadian Lender) as soon as possible and in any event not later than 10:00 a.m. (Toronto time) on such Drawdown Date of the price for each Bankers' Acceptance payable by the purchaser thereof and the identity of the person who will pay such price to and take delivery of such Bankers' Acceptance from the applicable Canadian Lender, and such Canadian Lender is hereby authorized to release such Bankers' Acceptance to such person on receipt of a Notice certified check or bank draft in an amount equal to such price.
(d) A Canadian Loan Request requesting a Canadian Loan by way of Borrowing or Notice Bankers' Acceptance shall be given not later than 10:00 a.m. (Toronto time) on the second Business Day preceding the applicable Drawdown Date.
(e) Upon acceptance of Continuation each Draft Zale Xxxada shall pay to the applicable Canadian Lender the related fee specified in Section 4.12 and to facilitate payments, such Lender shall be 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 Canadian Agent for the account of Zale Xxxada in respect of the sale of the related Bankers' Acceptance.
(f) If the Canadian Agent determines in good faith, which determination shall be final, conclusive and binding upon Zale Xxxada, and so notifies Zale Xxxada 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 Zale Xxxada to require the Canadian Lenders to purchase Bankers' Acceptances hereunder shall be suspended until the Canadian Agent determines that such market does exist and gives notice thereof to Zale Xxxada, and any Canadian Loan Request requesting an advance or continuation into, Bankers’ ' Acceptances shall be deemed to be sufficient authority from Authorized Officers or such designated persons for each of the a Canadian Lenders to complete, and issue drafts Loan Request requesting Canadian Base Rate Loans in accordance with such notice. None of the Canadian Administrative Agent or the Canadian 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 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdictionsimilar aggregate principal amount.
(hg) The Canadian Borrower waives presentment for payment and any other defense On the date of maturity of each Bankers' Acceptance, Zale Canada shall pay to the payment of any amounts due to a Canadian Lender in respect of a Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason Agent, for the account of the holder of such Bankers’ Acceptance being held, at the maturity thereof, by the Canadian Lender in its own right and the Canadian Borrower agrees not to claim any days of grace if the Canadian Lender as holder sues the Canadian Borrower on the Bankers’ Acceptance for payment of the amount payable by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature and the face amount thereof shall be due and payable on the last day of the Interest Period applicable thereto.
(i) Whenever the Canadian Borrower requests a 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 Canadian Dollars in an amount equal to the Non-face amount of such Bankers' Acceptance. The obligation of Zale Xxxada to make such payment shall not be prejudiced by the fact that the holder of any such Bankers' Acceptance Lender’s pro rata portion is the Canadian Lender that accepted such Bankers' Acceptance. No days of grace shall be claimed by Zale Xxxada for the payment at maturity of any Bankers' Acceptance. If Zale Xxxada does not make such payment, from the proceeds of Canadian Loans obtained hereunder or otherwise, the Canadian Lender that accepted such Bankers' Acceptance may (but shall not be obliged to), without receipt of a Canadian Loan Request and irrespective of whether any other applicable conditions precedent specified herein have been satisfied, and without waiver of the BA Loan. All terms of this Agreement applicable Default constituted by Zale Canada's failure to Bankers’ Acceptances shall apply equally make such payment, make a Canadian Base Rate Loan to Discount Notes evidencing BA Equivalent Loans with such changes as may Zale Xxxada in the context face amount of such Bankers' Acceptance, and shall forthwith give notice thereof to Zale Xxxada and the Canadian Agent (which shall promptly give similar notice to the other Canadian Lenders). Zale Xxxada agrees to accept each such Canadian Base Rate Loan and hereby irrevocably authorizes and directs the applicable Canadian Lender to apply the proceeds thereof in payment of the liability of Zale Xxxada with respect to the related Bankers' Acceptance. Notwithstanding any other provisions hereof, all Canadian Base Rate Loans made as contemplated by this Section 4.10(g) shall be necessarypayable on demand by the Canadian Agent or the applicable Lender.
(h) If any Bankers' Acceptance is outstanding at any time that an Event of Default occurs, Zale Xxxada shall forthwith upon demand by the Canadian Agent pay to the Canadian Agent, for the account of the holder of such Bankers' Acceptance, Canadian Dollars in an amount equal to the face amount thereof. For greater certainty:Such funds (together with interest thereon) shall be held by the Canadian Agent, subject to Section 15.5 for payment of the liability of Zale Xxxada in respect of such Bankers' Acceptance and shall bear interest for such terms as are selected from time to time by the Canadian Agent at the wholesale money market rate of the Canadian Agent for deposits of similar amounts and maturities. Any balance of such funds and interest shall be held by the Canadian Agent as security for the remaining liabilities of Zale Canada under the Loan Documents.
(i) The signature of any Senior Officer of Zale Xxxada on a Draft may be mechanically reproduced in facsimile, and all Drafts bearing such facsimile signature shall be binding upon Zale Xxxada as if they had been manually signed by such Senior Officer, notwithstanding that such person whose manual or facsimile signature appears on such Draft may no longer hold office at the term date thereof or at the date of acceptance of such Draft by a Discount Note Canadian Lender or at any time thereafter.
(j) For the purpose of calculating the undisbursed Canadian Commitments and for any other relevant provision of this Agreement, the amount of Canadian Loans constituted by any Bankers' Acceptance shall be the same as the Interest Period for Bankers’ Acceptances accepted on the same date of the Borrowing in respect of the same BA Loan;face amount thereof.
(iik) an acceptance fee will be payable in respect of a Discount Note and In no event shall be calculated at the same rate and in the same manner as the Applicable Stamping Fee in respect of a Bankers’ Acceptance; and
(iii) ' Acceptance be issued for a term that would extend beyond the proceeds from a BA Equivalent Loan shall be equal to the BA Discount Proceeds of the Discount Note.Maturity Date
Appears in 1 contract
Bankers’ Acceptances. (a1) The Canadian Administrative Agent, promptly following receipt of a Notice of Borrowing or Notice of Continuation, requesting BA Loans, shall advise each applicable Canadian Lender of the face or principal amount and term of each BA Loan to be accepted (and purchased) or advanced by it. The aggregate face or principal amount of BA Loans to be accepted or advanced by a Canadian Lender shall be determined by the Canadian Administrative Agent by reference to that Canadian 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 Canadian Lenders shall be increased or reduced by the Canadian Administrative Agent in its sole discretion as may be necessary to ensure that the face amount of the Bankers’ Acceptance to be accepted by each applicable Canadian Lender would be C$100,000 or a whole multiple thereof. For greater certainty, the foregoing C$100,000 minimum face amount of Bankers’ Acceptances for each Lender shall not apply to BA Equivalent Loans.
(b) On the date specified in a Notice of Borrowing or Notice of Continuation on which a BA Loan is to be made, the Canadian Administrative Agent shall advise the Canadian Borrower as to the Canadian 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 Canadian Borrower shall sell and each Canadian Lender shall purchase the Bankers’ Acceptance accepted by it at the applicable BA Discount Rate. Subject to clause (d) below, each Canadian Lender shall provide the Canadian Administrative Agent, for the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping Fee payable by the Canadian Borrower with respect to the Bankers’ Acceptance.
(d) In the event the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6, the Canadian Administrative Agent shall make arrangements satisfactory to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the Canadian Borrower should concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(e) Each Canadian Lender may from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances accepted and purchased by it.
(f) In order to To facilitate the issuance of Bankers’ Acceptances pursuant to procedures contemplated in this Agreement, the Canadian Borrower hereby authorizes irrevocably appoints each Canadian Lender from time to time as the attorney-in-fact of the Canadian LendersBorrower to execute, endorse and appoints each deliver on behalf of the Canadian Lenders as the Canadian Borrower’s attorney, to complete, sign and endorse Borrower drafts or depository bills (as defined in the Depository Bills and Notes Act forms prescribed by such Lender (Canadaif such Lender is a BA Lender) for bankers’ acceptances denominated in Cdn. Dollars (each such executed draft or xxxx which has not yet been accepted by a Lender being herein referred to as a “Draft”) on its behalf or non interest-bearing promissory notes of the Canadian Borrower in handwritten form or by facsimile or mechanical signature or otherwise in accordance with the applicable Notice favour of Borrowing or Notice of Continuation and, once so completed, signed and endorsed such Lender (if such Lender is a Non BA Lender) (each such promissory note being referred to accept them as a “BA Equivalent Note”). Each Bankers’ Acceptances under this Agreement Acceptance and then if applicable, purchase, discount or negotiate such Bankers’ Acceptances in accordance with the provisions of this Agreement. Drafts so completed, signed, endorsed BA Equivalent Note executed and negotiated delivered by a Lender on behalf of the Canadian Borrower by a Canadian Lender shall bind as provided for in this Section will be as binding upon the Canadian Borrower as fully if it had been executed and effectively as if so performed delivered by an Authorized Officer a duly authorized officer of the Canadian Borrower. Each draft of a Bankers’ Acceptance completed, signed or endorsed by a Canadian Lender shall mature on the last day of the term thereof. All Bankers’ Acceptances to be accepted by a particular Canadian Lender shall, at the option of such Canadian 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).
(g2) Any 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 used for Bankers’ Acceptances which are completed by the Lenders as required by this Agreement. All such Drafts or BA Equivalent Notes will be held by a Canadian each Lender shall be held in safekeeping with subject to the same degree of care as if they were such Canadian Lender’s own property being kept at the place at which they 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 heldaccepted 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 Canadian Borrower may, by written notice to the Canadian Administrative Agent, designate persons other than Authorized Officers authorized to give the Canadian 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 Canadian Administrative Agent term of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation into, all Bankers’ Acceptances shall and BA Equivalent Notes issued pursuant to any Drawdown Notice will be deemed to identical. Each Bankers’ Acceptance and BA Equivalent Note will be sufficient authority from Authorized Officers dated the Drawdown Date on which it is issued and will be for a term of one, two, three or such designated persons for each of six months provided that in no event will the Canadian Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian 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 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction.
(h) The Canadian Borrower waives presentment for payment and any other defense to the payment of any amounts due to a Canadian Lender in respect 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 BA Lender, and the face amount of the BA Equivalent Notes to be purchased at any time by it 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 will 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 this Agreement which might exist solely by reason of Section 5.01(3). Each applicable BA Lender will purchase on the applicable Drawdown Date the Bankers’ Acceptance being held, at the maturity thereof, by the Canadian Lender in its own right and the Canadian Borrower agrees not to claim any days of grace if the Canadian Lender as holder sues the Canadian Borrower on the Bankers’ Acceptance for payment of the amount payable by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature and the face amount thereof shall be due and payable on the last day of the Interest Period applicable thereto.
(i) Whenever the Canadian Borrower requests a 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 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 Discount Note shall be the same as the Interest Period for or Bankers’ Acceptances accepted on the same date of the Borrowing in respect of the same BA Loan;
(ii) by it, for 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 Applicable Stamping Fee in respect of a Bankers’ Acceptance; and
(iii) the proceeds from a BA Equivalent Loan shall be aggregate price equal to the BA Discount Proceeds of such Bankers’ Acceptance (or Bankers’ Acceptances). The Canadian Borrower will ensure that 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 Notes Act (Canada), and such 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 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 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 BA Lender, for a price equal to the BA Discount Proceeds of such BA Equivalent Note. Each Non BA Lender will be entitled without charge to exchange any BA Equivalent Note held by it for two or more BA Equivalent Notes of identical date and aggregate face amount, and the Canadian Borrower will execute and deliver to such Non BA Lender such replacement BA Equivalent Notes in exchange for which such Non BA Lender will return the original BA Equivalent Note to the Canadian Borrower for cancellation.
(6) The Canadian Borrower will pay to each BA Lender in respect of each Draft tendered by the Canadian Borrower to and accepted by such BA Lender, and to each Non BA Lender in respect of each BA Equivalent Note tendered to and purchased by such Non BA Lender, as a condition of such acceptance or purchase, the BA Stamping Fee.
(7) Upon acceptance of each Draft or purchase of each BA Equivalent Note, the Canadian Borrower will pay to the applicable Lender 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
Appears in 1 contract
Bankers’ Acceptances. (ai) The Canadian Administrative Agent, promptly following receipt of a Notice of Borrowing or Notice of Continuation, Conversion/Continuation requesting BA Loans, shall advise each applicable Canadian Dollar Term Lender of the face or principal amount and term of each BA Loan to be accepted (and purchased) or advanced by it. The aggregate face or principal amount of BA Loans to be accepted or advanced by a Canadian Dollar Term Lender shall be determined by the Canadian Administrative Agent by reference to that such Canadian Dollar Term Lender’s applicable pro rata portion Pro Rata Share of the issue or advance of BA Loans, except that the aggregate face amount of Bankers’ Acceptances to be accepted by the applicable Canadian Dollar Term Lenders shall be increased or reduced by the Canadian Administrative Agent in its sole discretion as may be necessary to ensure that the face amount of the Bankers’ Acceptance to be accepted by each applicable Canadian Dollar Term Lender would be C$100,000 or a whole multiple thereof. For greater certainty, the foregoing C$100,000 requirement for a minimum face amount and a whole multiple of Bankers’ Acceptances for each Lender C$100,000 shall not apply to BA Equivalent Loans.
(bii) On the date specified in a Notice of Borrowing or Notice of Conversion/Continuation on which a BA Loan is to be made, the Canadian Administrative Agent shall advise the Canadian Borrower as to the Canadian Administrative Agent’s determination of the BA Discount Rate for the BA Loans to be purchased or advanced, as the case may be.
(ciii) The Canadian Borrower shall sell issue and each Canadian Dollar Term Lender shall accept and subsequently purchase the Bankers’ Acceptance accepted by it at the applicable BA Discount Rate. Subject to clause (div) below, each Canadian Dollar Term Lender shall provide the Canadian Administrative Agent, for the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping Fee payable by the Canadian Borrower with respect to the Bankers’ Acceptance.
(div) In the event the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Rate Loans into BA Loans in accordance with Section 2.62.2D, the Canadian Administrative Agent shall make arrangements satisfactory to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the Canadian Borrower should shall concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(ev) Each Canadian Dollar Term Lender may from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances accepted and purchased by it.
(fvi) In order to facilitate the issuance of Bankers’ Acceptances pursuant to this Agreement, the Canadian Borrower hereby authorizes each of the Canadian Dollar Term Lenders, and appoints each of the Canadian Dollar Term Lenders as the Canadian 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 Borrowing or Notice of Conversion/Continuation 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, signed, endorsed and negotiated on behalf of the Canadian Borrower by a Canadian Dollar Term Lender shall bind the Canadian Borrower as fully and effectively as if so performed by an Authorized authorized Officer of the Canadian Borrower. Each draft of a Bankers’ Acceptance completed, signed or endorsed by a Canadian Dollar Term Lender shall mature on the last day of the term thereof. All Bankers’ Acceptances to be accepted by a particular Canadian Dollar Term Lender shall, at the option of such Canadian Dollar Term 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).
(gvii) Any Drafts to be used for Bankers’ Acceptances which are held by a Canadian Dollar Term Lender shall be held in safekeeping with the same degree of care as if they were such Canadian Dollar Term Lender’s own property being kept at the place at which they are to be held. The Canadian Borrower may, by written notice to the Canadian Administrative Agent, designate persons other than Authorized authorized Officers authorized to give the Canadian 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 provided, however, that receipt by the Canadian Administrative Agent of a Notice of Borrowing or Notice of Conversion/Continuation requesting an advance or continuation into, Bankers’ Acceptances shall be deemed to be sufficient authority from Authorized authorized Officers or such designated persons for each of the Canadian Dollar Term Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian Dollar Term 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 2.14(g2.1F(vii) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction.
(hviii) The Canadian Borrower waives presentment for payment and any other defense to the payment of any amounts due to a Canadian Dollar Term Lender in respect of a Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason of the Bankers’ Acceptance being held, at the maturity thereof, by the Canadian Dollar Term Lender in its own right and the Canadian Borrower agrees not to claim any days of grace if the Canadian Dollar Term Lender as holder sues the Canadian Borrower on the Bankers’ Acceptance for payment of the amount payable by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature and the face amount thereof shall be due and payable on the last day of the Interest Period applicable thereto.
(iix) Whenever the Canadian Borrower requests a Canadian Dollar Term 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 Pro Rata Share of the BA Loan. All terms of this Agreement applicable to Bankers’ Acceptances and Drafts shall apply equally to Discount Notes evidencing BA Equivalent Loans with such changes as may in the context be necessary. For greater certainty:
(ia) the term of a Discount Note shall be the same as the Interest Period for Bankers’ Acceptances accepted on the same date of the Borrowing in respect of the same BA Loan;
(iib) 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 Applicable Stamping Fee in respect of a Bankers’ Acceptance; and
(iiic) the proceeds from a BA Equivalent Loan shall be equal to the BA Discount Proceeds of the Discount Note.
Appears in 1 contract
Samples: Amendment Agreement (Brand Energy & Infrastructure Services, Inc)
Bankers’ Acceptances. (a) The Subject to the terms and conditions hereof, and subject to compliance with the provisions of Section 2.3, on any Business Day, Xxxxx Canada may borrow loans in Canadian Administrative AgentDollars from the Canadian Lenders (in an aggregate Dollar Equivalent principal amount at any time outstanding for all Canadian Loans by such Lender not to exceed such Canadian Lender's Qualified Offshore Commitment for Canadian Dollar Loans) by way of Acceptances, promptly following receipt of a Notice of Borrowing or Notice of Continuationprovided, requesting BA Loanshowever, shall advise that:
(i) each applicable Canadian Lender shall have received a Bankers' Acceptance or Bankers' Acceptances in the aggregate principal amount of such borrowing from Xxxxx Canada in due and proper form duly completed and executed by Xxxxx Canada and presented for acceptance to such Canadian Lender prior to 10:00 a.m. (Local Time) two Business Days prior to the date for such borrowing, together with such other customary document or documents as such Canadian Lender may reasonably require (including the execution by Xxxxx Canada of such Canadian Lender's usual form of bankers' acceptances) and the Acceptance Fee shall have been paid to such Canadian Lender at or prior to such time;
(ii) each Bankers' Acceptance shall be stated to mature on a Business Day (no later than the Revolving Loan Maturity Date) which is 30, 60, 90 or 180 days from the date of its acceptance;
(iii) each Bankers' Acceptance shall have a face amount of C$100,000 or a whole multiple thereof and shall be in form satisfactory to such Canadian Lender;
(iv) each Bankers' Acceptance shall be stated to mature on a Business Day in such a way that no Canadian Lender will be required to incur any costs for the redeployment of funds as a consequence of any repayment required during any period for which such Bankers' Acceptance is outstanding;
(v) no days of grace shall be permitted on any Bankers' Acceptance;
(vi) the aggregate face amount of the face or principal amount and term of each BA Loan Bankers' Acceptances to be accepted (and purchased) or advanced by it. The aggregate face or principal amount of BA Loans to be accepted or advanced by a Canadian Lender shall be determined by the Canadian Administrative Agent by reference to that the respective relevant Revolving Commitments of such Canadian 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 Canadian Lenders shall be increased or reduced by the Canadian Administrative Agent in its sole discretion as may be necessary to ensure that that, if the face amount of the a Bankers’ ' Acceptance to which would otherwise be accepted by each applicable a Canadian Lender would not be C$100,000 or a whole multiple thereof. For greater certainty, such face amount shall be increased or reduced by the foregoing Administrative Agent in its sole discretion to C$100,000 minimum face amount or the nearest whole multiple of Bankers’ Acceptances for each Lender shall not apply to BA Equivalent Loans.
(b) On the date specified in a Notice of Borrowing or Notice of Continuation on which a BA Loan is to be made, the Canadian Administrative Agent shall advise the Canadian Borrower as to the Canadian Administrative Agent’s determination of the BA Discount Rate for the BA Loans to be purchased or advancedthat amount, as the case may be.
(c) The Canadian Borrower shall sell and each Canadian Lender shall purchase the Bankers’ Acceptance accepted by it at the applicable BA Discount Rate. Subject to clause (d) below, each Canadian Lender shall provide the Canadian Administrative Agent, for the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping Fee payable by the Canadian Borrower with respect to the Bankers’ Acceptance.
(d) In the event the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6, the Canadian Administrative Agent shall make arrangements satisfactory to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the Canadian Borrower should concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(e) Each Canadian Lender may from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances accepted and purchased by it.
(f) In order to facilitate the issuance of Bankers’ Acceptances pursuant to this Agreement, the Canadian Borrower hereby authorizes each of the Canadian Lenders, and appoints each of the Canadian Lenders as the Canadian 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 Borrowing or Notice of Continuation 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, signed, endorsed and negotiated on behalf of the Canadian Borrower by a Canadian Lender shall bind the Canadian Borrower as fully and effectively as if so performed by an Authorized Officer of the Canadian Borrower. Each draft of a Bankers’ Acceptance completed, signed or endorsed by a Canadian Lender shall mature on the last day of the term thereof. All Bankers’ Acceptances to be accepted by a particular Canadian Lender shall, at the option of such Canadian 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 Canadian Lender shall be held in safekeeping with the same degree of care as if they were such Canadian Lender’s own property being kept at the place at which they are to be held. The Canadian Borrower may, by written notice to the Canadian Administrative Agent, designate persons other than Authorized Officers authorized to give the Canadian 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 Canadian Administrative Agent of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation into, Bankers’ Acceptances shall be deemed to be sufficient authority from Authorized Officers or such designated persons for each of the Canadian Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian 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 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction.
(h) The Canadian Borrower waives presentment for payment and any other defense to the payment of any amounts due to a Canadian Lender in respect of a Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason of the Bankers’ Acceptance being held, at the maturity thereof, by the Canadian Lender in its own right and the Canadian Borrower agrees not to claim any days of grace if the Canadian Lender as holder sues the Canadian Borrower on the Bankers’ Acceptance for payment of the amount payable by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature and the face amount thereof shall be due and payable on the last day of the Interest Period applicable thereto.
(i) Whenever the Canadian Borrower requests a 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 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 Discount Note shall be the same as the Interest Period for Bankers’ Acceptances accepted on the same date of the Borrowing in respect of the same BA Loan;
(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 Applicable Stamping Fee in respect of a Bankers’ Acceptanceappropriate; and
(iiivii) at no time shall any Canadian Lender be obligated to make a BA Rate Loan:
(A) in excess of such Lender's Pro Rata Share of the Aggregate Available Revolving Credit;
(B) in excess of such Lender's Pro Rata Share of the Available Offshore Currency Credit;
(C) such that after giving effect thereto, such Lender's Qualified Offshore Outstanding with respect to Xxxxx Canada would exceed such Lender's Qualified Offshore Commitment in respect of Xxxxx Canada or such Lender's Swing Line Commitment in respect of Xxxxx Canada;
(D) such that after giving effect thereto, the Dollar Equivalent of (1) the proceeds from a BA Equivalent Loan shall be equal to Aggregate Offshore Currency Outstanding would exceed the BA Discount Proceeds of the Discount Note.Offshore Currency Sublimit; or
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Greif Brothers Corp)
Bankers’ Acceptances. (a) The Subject to the terms and conditions hereof, upon giving to the Administrative Agent prior written notice in accordance with this Section 2.5, on any Business Day, a Canadian Administrative AgentBorrower may borrow from the Canadian Lenders by way of Acceptances, promptly following receipt of a Notice of Borrowing or Notice of Continuationprovided, requesting BA Loanshowever, shall advise that:
(i) each applicable Canadian Lender shall have received a Bankers' Acceptance or Bankers' Acceptances in the aggregate principal amount of such borrowing from such Canadian Lender in due and proper form duly completed and executed by such Canadian Borrower and presented for acceptance to such Canadian Lender prior to 10:00 a.m. (Toronto time) on the date for such borrowing, together with such other document or documents as such Canadian Lender may reasonably require (including the execution by such Canadian Borrower of such Canadian Lender's usual form of bankers' acceptances) and the Acceptance Fee shall have been paid to such Canadian Lender at or prior to such time;
(ii) each Bankers' Acceptance shall be stated to mature on a Business Day, no later than the Revolving Credit Termination Date, which is 30, 60 or 90 days from the date of its acceptance;
(iii) each Bankers' Acceptance shall have a face amount of not less than CAD100,000 and shall be in form satisfactory to such Canadian Lender;
(iv) each Bankers' Acceptance shall be stated to mature on a Business Day in such a way that no Canadian Lender will be required to incur any costs for the redeployment of funds as a consequence of any repayment required during any period for which such Bankers' Acceptance is outstanding;
(v) no days of grace shall be permitted on any Bankers' Acceptance;
(vi) the aggregate face amount of the face or principal amount and term of each BA Loan Bankers' Acceptances to be accepted (and purchased) or advanced by it. The aggregate face or principal amount of BA Loans to be accepted or advanced by a Canadian Lender shall be determined by the Canadian Administrative Agent by reference to that Canadian Lender’s applicable pro rata portion the respective relevant Revolving Credit Commitments of the issue or advance of BA LoansCanadian Lenders, except that that, if the aggregate face amount of a Bankers’ Acceptances to ' Acceptance which would otherwise be accepted by the applicable a Canadian Lenders Lender would not be $100,000 or a whole multiple thereof, such face amount shall be increased or reduced by the Canadian Administrative Agent in its sole discretion to $100,000 or the nearest whole multiple of that amount, as may be necessary appropriate; and
(vii) after giving affect to ensure that the face amount issuance of each Acceptance, (A) the Bankers’ Acceptance aggregate Revolving Credit Outstandings owing to be accepted by each applicable any Canadian Lender would be C$100,000 not exceed such Canadian Lender's Revolving Credit Commitment in effect at such time or a whole multiple thereof. For greater certainty, (B) the foregoing C$100,000 minimum face amount aggregate Revolving Credit Outstandings owing to all of Bankers’ Acceptances for each Lender shall the Lenders would not apply to BA Equivalent Loansexceed the Revolving Credit Commitments in effect at such time.
(b) On the date specified in a Notice of Borrowing or Notice of Continuation on which a BA Loan is to be made, the Canadian Administrative Agent shall advise the Each Canadian Borrower as to the Canadian Administrative Agent’s determination of the BA Discount Rate for the BA Loans to be purchased or advancedacknowledges, as the case may be.
(c) The Canadian Borrower shall sell agrees and confirms that each Canadian Lender shall purchase the Bankers’ Acceptance accepted by it may at the applicable BA Discount Rate. Subject to clause (d) below, each Canadian Lender shall provide the Canadian Administrative Agent, for the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping Fee payable by the Canadian Borrower with respect to the Bankers’ Acceptance.
(d) In the event the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6, the Canadian Administrative Agent shall make arrangements satisfactory to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) any time and the Canadian Borrower should concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(e) Each Canadian Lender may from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances Acceptance accepted and purchased by it hereunder, that the records of such Canadian Lender in respect of payment of any Bankers' Acceptance by such Canadian Lender shall be binding on such Canadian Borrower and shall be conclusive evidence (in the absence of manifest error) of a BA Rate Loan to such Canadian Borrower and of an amount owing by the Borrowing Subsidiary to such Lender.
(c) In the event a Canadian Lender is unable or, in its sole discretion, shall have determined that by reason of circumstances arising after the Effective Date and affecting the market for Bankers' Acceptances, that it is unwilling, to accept Bankers' Acceptances, such Canadian Lender shall have the right at the time of accepting drafts to require the Canadian Borrower requesting such Bankers' Acceptance to accept a Revolving Loan from such Canadian Lender in lieu of the issue and acceptance of a Bankers' Acceptance requested by the Borrowing Subsidiary (a "BA Equivalent Loan") to be accepted so that there shall be outstanding while the Bankers' Acceptances are outstanding BA Equivalent Loans from such Canadian Lender as contemplated herein. The principal amount of each BA Equivalent Loan shall be that amount which, when added to the amount of interest (calculated at the applicable Discount Rate) which will accrue during the applicable BA Interest Period, equals, at maturity, to the face amount 39 45 of the drafts which would have been accepted by such Canadian Lender had it accepted Bankers' Acceptances. On the relevant date of the borrowing the Canadian Borrower requesting such Acceptance shall pay to the Administrative Agent a fee equal to the Acceptance Fee which would have been payable to such Canadian Lender if it were a Canadian Lender accepting drafts having a term to maturity equal to the applicable BA Interest Period and an aggregate face amount equal to the sum of the principal amount of the BA Equivalent Loan and the interest payable thereon by such Canadian Borrower for the applicable BA Interest Period. The provisions of this Agreement dealing with Bankers' Acceptances shall apply, mutatis mutandis, to BA Equivalent Loans.
(d) Each Bankers' Acceptance issued pursuant to this Agreement shall be purchased by the Canadian Lender accepting such Bankers' Acceptance for the Discounted Proceeds thereof. Concurrent with the acceptance of each Bankers' Acceptance, such Canadian Lender shall make available to the Administrative Agent the Discounted Proceeds thereof for disbursement to the applicable Canadian Borrower in accordance with the terms hereof. On any date on which both new Bankers' Acceptances are being purchased and existing Bankers' Acceptances are maturing, the applicable Canadian Borrower hereby authorizes the applicable Canadian Lender and the Administrative Agent to net all amounts payable on such date by such Canadian Lender to the Administrative Agent for the account of such Canadian Borrower, against all amounts payable on such date by such Canadian Borrower to such Canadian Lender in accordance with the Administrative Agent's calculations. In each case, upon receipt of such Discounted Proceeds from such Lender and upon fulfillment of the applicable conditions set forth herein, the Administrative Agent shall make such funds available to the relevant Canadian Borrower in accordance with this Agreement. Upon each issue of Bankers' Acceptances as a result of the conversion of outstanding Base Rate Loans into Bankers' Acceptances, each Canadian Borrower requesting such conversion shall, concurrently with the conversion, pay in advance to the Administrative Agent on behalf of the Canadian Lenders, the amount by which the face value of such Bankers' Acceptances exceeds the Discounted Proceeds of such Bankers' Acceptances, to be applied against the principal amount of the Base Rate Loans being so converted. Such Canadian Borrower shall at the same time pay to the Administrative Agent the applicable Acceptance Fee.
(e) To enable the Lenders to make Canadian Revolving Credit Outstandings in the manner specified in this Section 2.5, each Canadian Borrower shall, in accordance with the request of each Canadian Lender either (i) provide a power of attorney to complete, sign, endorse and issue Bankers' Acceptances, in such form as such Canadian Lender may require; or (ii) supply such Canadian Lender with such number of drafts as such Canadian Lender may reasonably request, duly endorsed and executed on behalf of such Canadian Borrower. Each Canadian Lender shall exercise such care in the custody and safekeeping of drafts as it would exercise in the custody and safekeeping of similar property owned by it. Each Canadian Lender will, upon request by a Canadian Borrower, promptly advise such Subsidiary of the number and designations, if any, of the uncompleted drafts then held by it.
(f) In order to facilitate the issuance of Bankers’ Acceptances pursuant to this Agreement, the Each Canadian Borrower hereby authorizes agrees to pay to each Canadian Lender on the maturity date of each Bankers' Acceptance issued by it, an amount equal to the face amount of all Bankers' Acceptances accepted by such Canadian Lender maturing on that day (notwithstanding that a Canadian Lender may be the holder thereof at maturity) and all reasonable expenses paid or incurred by such Canadian Lender, relative thereto. Unless such Canadian Borrower shall have made such payment to the Canadian Lenders, on such day and appoints upon each such maturity date of each Bankers' Acceptance, the Administrative Agent shall be deemed to have disbursed to the such Borrower, and such Borrower shall be deemed to have elected to satisfy its reimbursement and payment obligation by, a Revolving Credit Borrowing from the Canadian Lenders in Canadian Dollars bearing interest at the Base Rate for the account of the Canadian Lenders as the Canadian 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 Borrowing or Notice of Continuation 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, signed, endorsed and negotiated on behalf of the Canadian Borrower by a Canadian Lender shall bind the Canadian Borrower as fully and effectively as if so performed by an Authorized Officer of the Canadian Borrower. Each draft of a Bankers’ Acceptance completed, signed or endorsed by a Canadian Lender shall mature on the last day of the term thereof. All Bankers’ Acceptances to be accepted by a particular Canadian Lender shall, at the option of such Canadian 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 Canadian Lender shall be held in safekeeping with the same degree of care as if they were such Canadian Lender’s own property being kept at the place at which they are to be held. The Canadian Borrower may, by written notice to the Canadian Administrative Agent, designate persons other than Authorized Officers authorized to give the Canadian 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 Canadian Administrative Agent of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation into, Bankers’ Acceptances shall be deemed to be sufficient authority from Authorized Officers or such designated persons for each of the Canadian Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian 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 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction.
(h) The Canadian Borrower waives presentment for payment and any other defense to the payment of any amounts due to a Canadian Lender in respect of a Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason of the Bankers’ Acceptance being held, at the maturity thereof, by the Canadian Lender in its own right and the Canadian Borrower agrees not to claim any days of grace if the Canadian Lender as holder sues the Canadian Borrower on the Bankers’ Acceptance for payment of the amount payable by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature and the face amount thereof shall be due and payable on the last day of the Interest Period applicable thereto.
(i) Whenever the Canadian Borrower requests a 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-amount so paid by such Canadian Lender, in the face value of such Bankers' Acceptance Lender’s pro rata portion then maturing. Such Revolving Credit Borrowing shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Loan set forth in Section 3.2 and, to the extent of the BA Loan. All terms Revolving Credit Borrowing so disbursed, the reimbursement and payment obligation of the Company under 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:
(iSection 2.5(f) the term of a Discount Note shall be the same as the Interest Period for Bankers’ Acceptances accepted on the same date of the Borrowing in respect of the same BA Loan;
(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 Applicable Stamping Fee in respect of a Bankers’ Acceptancedeemed satisfied; and
(iii) the proceeds from a BA Equivalent Loan shall be equal to the BA Discount Proceeds of the Discount Note.provided,
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Bankers’ Acceptances. (a) The Subject to the terms and conditions of this Agreement, Canadian Administrative Agent, promptly following receipt of a Notice of Borrowing or Notice of Continuation, requesting BA Loans, shall advise each applicable Canadian Lender of the face or principal amount and term of each BA Loan to be accepted (and purchased) or advanced by it. The aggregate face or principal amount of BA Loans to be accepted or advanced by Borrower may request a Canadian Lender shall be determined Revolving Loan denominated in Canadian Dollars by presenting drafts for acceptance and, if applicable, purchase as B/As by the Canadian Administrative Agent by reference to that Canadian 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 Canadian Lenders shall be increased or reduced by the Canadian Administrative Agent in its sole discretion as may be necessary to ensure that the face amount of the Bankers’ Acceptance to be accepted by each applicable Canadian Lender would be C$100,000 or a whole multiple thereof. For greater certainty, the foregoing C$100,000 minimum face amount of Bankers’ Acceptances for each Lender shall not apply to BA Equivalent LoansRevolving Lenders.
(b) On A Canadian Revolving Lender shall not be obliged to either accept any draft presented for acceptance or advance any B/A Equivalent Loan:
(i) which is drawn on, or where the date specified Contract Period applicable thereto expires, on a day which is not a Business Day;
(ii) where the Contract Period applicable thereto matures on a day subsequent to the Canadian Revolver Termination Date;
(iii) where the Contract Period applicable thereto has a term other than approximately 30, 60, 90 or 180 days;
(iv) which is denominated in any currency other than Canadian Dollars;
(v) which is not in a Notice of Borrowing form satisfactory to such Canadian Revolving Lender or Notice of Continuation on which a BA Loan is to be made, the Canadian Administrative Agent shall advise Agent;
(vi) for a continuation, in respect of which the Canadian Borrower as to has not then paid the Canadian Administrative Agent’s determination applicable Acceptance Fee; or
(vii) if an Unmatured Event of the BA Discount Rate for the BA Loans to be purchased Default or advanced, as the case may bean Event of Default has occurred and is continuing.
(c) The To facilitate availment of B/A Loans, Canadian Borrower shall sell and hereby appoints each Canadian Revolving Lender shall purchase the Bankers’ Acceptance accepted by it at the applicable BA Discount Rate. Subject as its attorney to clause sign and endorse on its behalf (d) below, each Canadian Lender shall provide the Canadian Administrative Agent, for the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping Fee payable by the Canadian Borrower with respect to the Bankers’ Acceptance.
(d) In the event the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6, the a Notice of Canadian Administrative Agent shall make arrangements satisfactory Borrowing or Notice of Canadian Conversion or Continuation relating to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the Canadian Borrower should concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(e) Each Canadian Lender may from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances accepted and purchased by it.
(f) In order to facilitate the issuance of Bankers’ Acceptances a B/A Loan pursuant to this AgreementSection 2A.5 or Section 2A.6), the Canadian Borrower hereby authorizes each of the Canadian Lenders, and appoints each of the Canadian Lenders as the Canadian 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 handwriting or by facsimile or mechanical signature or otherwise as and when deemed necessary by such Canadian Revolving Lender, blank drafts in accordance with the applicable Notice form requested by such Canadian Revolving Lender. In this respect, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply of Borrowing or Notice of Continuation and, once so completed, signed and endorsed to accept them as Bankers’ Acceptances blank drafts for acceptance 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, Canadian Borrower recognizes and agrees that all drafts signed and/or endorsed and negotiated by a Canadian Revolving Lender on behalf of the Canadian Borrower by a Canadian Lender shall bind the Canadian Borrower as fully and effectively effectually as if so performed signed in the handwriting of and duly issued by an Authorized Officer the proper signing officers of the Canadian Borrower. Each draft Canadian Revolving Lender is hereby authorized (in accordance with a Notice of Canadian Borrowing or Notice of Canadian Conversion or Continuation relating to a Bankers’ Acceptance completedB/A Loan) to issue such B/As endorsed in blank in such face amounts as may be determined by such Canadian Revolving Lender, signed or endorsed by a Canadian Lender shall mature on provided that, the last day aggregate amount thereof is equal to the aggregate amount of the term thereof. All Bankers’ Acceptances drafts required to be accepted and purchased by such Canadian Revolving Lender. No Canadian Revolving Lender shall 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 willful misconduct of the Canadian Revolving Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a particular record, which shall be made available to Canadian Borrower upon its request, with respect to drafts (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder, and (iv) cancelled at their respective maturities. On request by or on behalf of Canadian Borrower, a Canadian Revolving Lender shallshall cancel all forms of B/As which have been pre-signed or pre-endorsed on behalf of Canadian Borrower and that are held by such Canadian Revolving Lender and are not required to be issued in accordance with Canadian Borrower’s irrevocable notice. Alternatively, Canadian Borrower agrees that, at the option request of such Canadian LenderAdministrative Agent, be issued in Canadian Borrower shall deliver to Canadian Administrative Agent a “depository note” which complies with the form requirements of depository bills made payable originally to and deposited with The Depository for Securities Limited pursuant to 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.
(gd) Any Drafts of Canadian Borrower to be used for Bankers’ Acceptances which are held by a Canadian Lender accepted as B/As hereunder shall be held signed as set forth in safekeeping with this Section 2A.9. Notwithstanding that any Person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian Revolving Lender or Canadian Borrower at the same degree date of care issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if they were such Canadian Lender’s own property being kept authority had remained in force at the place at which they are to time of such issuance and any such B/A so signed shall be held. The binding on Canadian Borrower may, by written notice to Borrower.
(e) Promptly following the Canadian Administrative Agent, designate persons other than Authorized Officers authorized to give the Canadian 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 Canadian Administrative Agent of a Notice of Canadian Borrowing or Notice of Canadian Conversion or Continuation requesting an advance or continuation into, Bankers’ Acceptances shall be deemed to be sufficient authority from Authorized Officers or such designated persons for each of the Canadian Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian 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 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction.
(h) The Canadian Borrower waives presentment for payment and any other defense to the payment of any amounts due to specifying a Canadian Lender in respect of a Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason of the Bankers’ Acceptance being held, at the maturity thereof, by the Canadian Lender in its own right and the Canadian Borrower agrees not to claim any days of grace if the Canadian Lender as holder sues the Canadian Borrower on the Bankers’ Acceptance for payment of the amount payable by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature and the face amount thereof shall be due and payable on the last day of the Interest Period applicable thereto.
(i) Whenever the Canadian Borrower requests a 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 Revolving Loan by way of Discount Note in an amount equal to B/As, Canadian Administrative Agent shall so advise the Non-Acceptance Lender’s pro rata portion Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the BA Loan. All terms aggregate face amount of this Agreement the B/As to be accepted by it and the 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:
Contract Period (i) the term of a Discount Note which shall be identical for all Canadian Revolving Lenders). In the same as case of Canadian Revolving Loans comprised of B/A Loans, the Interest Period for Bankers’ Acceptances accepted on the same date aggregate face amount of the Borrowing B/As to be accepted by a Canadian Revolving Lender shall be in respect a minimum aggregate amount of the same BA Loan;
(ii) an acceptance fee will be payable in respect of a Discount Note Cdn.$500,000 and shall be calculated at the same rate a whole multiple of Cdn.$100,000, and such face amount shall be in the same manner as the Applicable Stamping Fee Canadian Revolving Lenders’ pro rata portions of such Canadian Revolving Loan, provided that, Canadian Administrative Agent may in respect its sole discretion increase or reduce any Canadian Revolving Lender’s portion of a Bankers’ Acceptance; and
(iii) the proceeds from a BA Equivalent such B/A Loan shall be equal to the BA Discount Proceeds of the Discount Notenearest Cdn.$100,000.
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Bankers’ Acceptances. (a) The Each Banker’s Acceptance tendered by the Canadian Administrative Agent, promptly following receipt of a Notice of Borrowing or Notice of Continuation, requesting BA Loans, shall advise each applicable Canadian Lender of the face or principal amount and term of each BA Loan to be accepted (and purchased) or advanced by it. The aggregate face or principal amount of BA Loans to be accepted or advanced Borrower for acceptance by a Canadian Lender under the Canadian Revolving Facility shall be determined by the denominated in Canadian Administrative Agent by reference to that Canadian Lender’s applicable pro rata portion of the issue or advance of BA Loans, except that the aggregate face amount of Bankers’ Acceptances to Dollars and be accepted by the applicable Canadian Lenders shall be increased or reduced by the Canadian Administrative Agent payable in its sole discretion as may be necessary to ensure that the face amount of the Bankers’ Acceptance to be accepted by each applicable Canadian Lender would be C$100,000 or a whole multiple thereofCanada. For greater certainty, the foregoing C$100,000 minimum face amount of Bankers’ Acceptances for each Lender shall not apply to BA Equivalent Loans.
(b) On the date specified in a Notice of Borrowing or Notice of Continuation on which a BA Loan is to be made, the Canadian Administrative Agent shall advise the Canadian Borrower as to the Canadian 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 Canadian Borrower shall sell and each Canadian Lender shall purchase the Bankers’ Acceptance accepted by it at the applicable BA Discount Rate. Subject to clause (d) below, each Canadian Lender shall provide the Canadian Administrative Agent, for the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping Fee payable by the Canadian Borrower with respect to the Bankers’ Acceptance.
(d) In the event the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6, the Canadian Administrative Agent shall make arrangements satisfactory to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the Canadian Borrower should concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(e) Each Canadian Lender may from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances accepted and purchased by it.
(f) In order to facilitate the issuance of Bankers’ Acceptances pursuant to this Agreement, the Canadian Borrower hereby authorizes each of the Canadian Lenders, and appoints each of acknowledges that the Canadian Lenders as may require the Canadian Borrower’s attorney, to complete, sign delivery of drafts which are in conformity with the rules and endorse drafts or depository bills procedures of a clearing house (as that term in defined in the Depository Bills and Notes Act (Canada)) used by the Canadian Lenders for the delivery, transfer and collection of bankers’ acceptances and depository bills.
(b) The Borrower shall provide for each accepted draft at its maturity to the Canadian Agent either by payment of the full principal amount thereof or through utilization of the Canadian Revolving Facility in accordance with this Agreement or through a combination thereof. The Canadian Borrower may not at any time request that any Bankers’ Acceptance be issued if the face amount of such executed draft requested Bankers’ Acceptance together with the aggregate of the other outstanding Loans under the Canadian Revolving Facility, would exceed the amount available to be drawdown under the Canadian Revolving Facility at such time. Any amount owing by the Canadian Borrower in respect of any Bankers’ Acceptance which is not paid or xxxx being herein referred provided for in accordance with the foregoing shall be deemed to be a Prime Rate Loan owing by the Canadian Borrower to the Canadian Lenders and shall be subject to all of the provisions of this Agreement applicable to a Prime Rate Loan The Canadian Borrower hereby authorizes the Canadian Lenders to debit its account by the amount required to pay any such drafts made by it and accepted as a “Draft”Bankers’ Acceptance hereunder which is not otherwise paid.
(c) If an Event of Default shall have occurred and shall then be continuing unremedied not waived by the Lenders (whether or not demand is made), the Canadian Borrower shall forthwith pay to the Canadian Agent an amount equal to the Canadian Lender’s maximum potential liability under all such outstanding Bankers’ Acceptances. Such amount shall be held by the Canadian Agent as general and continuing cash collateral for payment of the indebtedness and liability of the Canadian Borrower to the Canadian Lenders in respect of such Bankers’ Acceptances and any other obligations to the Canadian Lenders.
(d) To facilitate the acceptance of Bankers’ Acceptances hereunder, the Canadian Borrower hereby authorizes the Canadian Lenders and irrevocably appoints the Canadian Lenders as its attorney:
(i) to complete and sign on its behalf in handwritten form the Canadian Borrower’s behalf, either manually or by facsimile or mechanical signature or otherwise in accordance with signature, the applicable Notice of Borrowing or Notice of Continuation and, once so completed, signed and endorsed drafts to accept them as create the Bankers’ Acceptances under this Agreement and then if applicable(with, 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 Canadian Borrower by Lender’s discretion, the inscription “This is a Canadian Lender shall bind the Canadian Borrower as fully and effectively as if so performed by an Authorized Officer of the Canadian Borrower. Each draft of a Bankers’ Acceptance completed, signed or endorsed by a Canadian Lender shall mature on the last day of the term thereof. All Bankers’ Acceptances to be accepted by a particular Canadian Lender shall, at the option of such Canadian Lender, be issued in the form of depository bills made payable originally to and deposited with The Depository for Securities Limited pursuant xxxx subject to the Depository Bills and Notes Act (Canada));
(ii) after the acceptance thereof by the applicable Canadian Lender, to endorse on the Canadian Borrower’s behalf, either manually or by facsimile or mechanical signature, such Bankers’ Acceptances in favour of the applicable purchaser or endorsee thereof including, in the Canadian Lender’s discretion, the Canadian Lender or a clearing house (as defined by the Depository Bills and Notes Act (Canada));
(iii) to deliver such Bankers’ Acceptances to such purchaser or to deposit such Bankers’ Acceptances with such clearing house; and
(iv) to comply with the procedures and requirements established from time to time by the Canadian Lenders or such clearing house in respect of the delivery, transfer and collection of bankers’ acceptances and depository bills. All Bankers’ Acceptances so completed, signed, endorsed, delivered or deposited by a Canadian Lender on behalf of the Canadian Borrower shall be binding upon the Canadian Borrower as if completed, signed, endorsed, delivered or deposited by it. The records of the Canadian Lenders and such clearing house shall, in the absence of manifest error, be conclusively binding on the Canadian Borrower. The Lenders shall not be liable for any claim arising by reason of any loss or improper use of such drafts or Bankers’ Acceptances except for damages suffered by the Canadian Borrower caused by the intentional misconduct or gross negligence of a Canadian Lender.
(e) The Borrowers shall not claim any days of grace for the payment at maturity of any drafts presented and accepted as Bankers’ Acceptances hereunder.
(f) When the Canadian Borrower wishes to make a Borrowing by way of Bankers’ Acceptances it shall give the Canadian Agent the notice required pursuant to Section 2.2. Bankers’ Acceptances shall have terms of at least 1 month and not more than 6 months excluding days of grace (and which shall, in no event, end on a date after the Final Maturity Date) or any other term subject to market availability.
(g) Any Drafts to be used On the same day it receives such notice, the Canadian Agent shall notify by telephone or in writing all the Canadian Lenders of the details of the proposed issue, specifying, for each Canadian Lender:
(i) the Principal Amount of the Bankers’ Acceptances which are held to be accepted and purchased by a Canadian Lender shall be held in safekeeping with the same degree of care as if they were such Canadian Lender’s own property being kept at ; and
(ii) the place at which they are to be held. The Canadian Borrower may, by written notice to the Canadian Administrative Agent, designate persons other than Authorized Officers authorized to give the Canadian 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 Canadian Administrative Agent term of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation into, such Bankers’ Acceptances shall be deemed to be sufficient authority from Authorized Officers or such designated persons for each of the Canadian Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian 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 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdictionAcceptances.
(h) The Canadian Borrower waives presentment for payment and any other defense to the payment of any amounts due to a Canadian Lender in respect of a Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason of the Bankers’ Acceptance being held, at the maturity thereof, by the Canadian Lender in its own right and the Canadian Borrower agrees not to claim any days of grace if the Canadian Lender as holder sues the Canadian Borrower on the Bankers’ Acceptance for payment of the amount payable by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature and the face amount thereof shall be due and payable on the last day of the Interest Period applicable thereto.
(i) Whenever the Canadian Borrower requests a Loan under this Agreement borrowing by way of Bankers’ Acceptances, each Non-Acceptance Non BA Lender shall, in lieu of accepting a Bankers’ Acceptanceand purchasing any B/As, make a Loan (a “BA Equivalent Loan”) to the Canadian 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 Canadian Agent the amount of Available Proceeds of such BA Equivalent Loan by way for the account of Discount Note the Canadian Borrower in the same manner as such Lender would have provided the Available Proceeds in respect of the B/As 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 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 Canadian 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, and will be deducted from the principal amount equal of such BA Equivalent Loan in 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 Non-Acceptance Lender’s pro rata repayment requirements of this Agreement, on the B/A Maturity Date for such BA Equivalent Loan, the Canadian 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 Canadian Administrative Agent and the Canadian Borrower that BA Equivalent Loans made by it shall be evidenced by Discount Notes.
(i) For greater certainty, all provisions of this Agreement that are applicable to Bankers’ Acceptances shall also be applicable, mutatis mutandis, to BA Equivalent Loans, and notwithstanding any other provision of this Agreement, all references to principal amounts or any repayment or prepayment of any Loans that are applicable to Bankers’ Acceptances shall be deemed to refer to the full face amount thereof in the case of B/As and to the principal amount of any portion thereof consisting of the BA LoanEquivalent Loans. All “Bankers’ Acceptances” includes Discount Notes and all terms of this Agreement applicable to Bankers’ Acceptances (including the provisions of Section 2.6(d) relating to their execution by the Canadian 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 Interest Period for Bankers’ Acceptances accepted on the same date of the Borrowing in respect of the same BA Loan;
(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 Applicable Stamping Fee in respect of a Bankers’ Acceptance; and
(iii) the proceeds from a BA Equivalent Loan shall be equal to the BA Discount Proceeds of the Discount Note.
Appears in 1 contract
Samples: Credit Agreement (Firstservice Corp)
Bankers’ Acceptances. (a) The Canadian Administrative Agent, promptly following receipt of a Notice of Borrowing or Notice of Continuation, requesting BA Loans, shall advise each applicable Canadian Lender of the face or principal amount and term of each BA Loan to be accepted (and purchased) or advanced by it. The aggregate face or principal amount of BA Loans to be accepted or advanced by a Canadian Lender shall be determined by the Canadian Administrative Agent by reference to that Canadian Lender’s applicable pro rata portion of the Borrowers may issue or advance of BA Loans, except that the aggregate face amount of Bankers’ Acceptances to be accepted denominated in Canadian Dollars for acceptance and purchase by the applicable Canadian Revolving Lenders shall be increased or reduced by in accordance with the Canadian Administrative Agent in its sole discretion as may be necessary to ensure that the face amount provisions of the Section 2.01, Section 2.03 and this Section 2.23. Each Bankers’ Acceptance to be accepted by shall have a Contract Period of approximately 30, 60 or 90 days or such other terms as available. No Contract Period 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. On each applicable Canadian Lender would be C$100,000 or a whole multiple thereof. For greater certainty, the foregoing C$100,000 minimum face amount of Borrowing date on which Bankers’ Acceptances for each Lender shall not apply to BA Equivalent Loans.
(b) On the date specified in a Notice of Borrowing or Notice of Continuation on which a BA Loan is are to be madeaccepted, the Canadian Administrative Agent shall advise the Canadian Borrower Agent as to the Canadian Administrative Agent’s determination of the BA applicable Discount Rate for the BA Loans Bankers’ Acceptances which any of the Revolving Lenders have agreed to be purchased or advanced, as the case may be.
(c) The Canadian Borrower shall sell and each Canadian purchase. Each Revolving Lender shall agrees to purchase the a Bankers’ Acceptance accepted by it it. The applicable Borrower shall sell, and such Revolving Lender shall purchase, the Bankers’ Acceptance at the applicable BA Discount Rate. Subject to clause (d) below, each Canadian Such Revolving Lender shall provide to the Canadian Administrative Agent, for Funding Office the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping Acceptance Fee payable by the Canadian applicable Borrower with respect to the such Bankers’ Acceptance.
(d) In . Such proceeds will then be made available to the event applicable Borrower by the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6, the Canadian Administrative Agent shall make arrangements satisfactory to it to ensure crediting an account as directed by such Borrower with the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount aggregate of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the Canadian Borrower should concurrently pay amounts made available to the Canadian Administrative Agent any positive difference between by such Revolving Lenders and in like funds as received by the Maturing Amount and such BA Discount Proceeds.
(e) Administrative Agent. Each Canadian 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) In order . To facilitate Borrowings denominated in Canadian Dollars under the Revolving Facility to facilitate the issuance Borrowers by way of Bankers’ Acceptances pursuant to this AgreementB/As, the Canadian Borrower Borrowers hereby authorizes appoint each of the Canadian Lenders, and appoints each of the Canadian Lenders Revolving Lender as the Canadian Borrower’s attorney, its 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 behalf, in handwritten form handwriting or by facsimile or mechanical signature as and when deemed necessary by such Revolving Lender, blank forms of B/As reasonably acceptable to the Borrower Agent. In this respect, it is each Revolving Lender’s responsibility to 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 a Revolving Lender 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. Each Revolving Lender is hereby authorized to issue such B/As endorsed in blank in such face amounts as may be determined by 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 such Revolving Lender. No Revolving Lender shall be liable for any damage, loss or otherwise other claim arising by reason of any loss or improper use of any such instrument except the gross negligence or willful misconduct of such Revolving Lender or its officers, employees, agents or representatives. 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 held by it in blank hereunder, voided by it for any reason, accepted and purchased by it hereunder, and cancelled at their respective maturities. Each Revolving Lender agrees to provide such records to the applicable Notice of Borrowing or Notice of Continuation and, once so completed, signed and endorsed Borrower Agent at the Borrowers’ expense upon request. Drafts drawn by a Borrower to accept them be accepted as Bankers’ Acceptances under this Agreement and then if shall be signed by a duly authorized officer or officers of such Borrower or by its attorneys, including attorneys appointed pursuant to Section 2.21(f) above. Notwithstanding that any Person whose signature appears on any Bankers’ Acceptance may no longer be an authorized signatory for a Borrower, as applicable, purchase, discount or negotiate such Bankers’ Acceptances in accordance with at the provisions time of this Agreement. Drafts so completed, signed, endorsed and negotiated on behalf of the Canadian Borrower by a Canadian Lender shall bind the Canadian Borrower as fully and effectively as if so performed by an Authorized Officer of the Canadian Borrower. Each draft issuance of a Bankers’ Acceptance, that signature shall nevertheless be valid and sufficient for all purposes as if the authority had remained in force at the time of issuance and any Bankers’ Acceptance completedso signed shall be binding on such Borrower. The Administrative Agent, signed promptly following receipt of a notice of Borrowing, continuation or endorsed conversion by a Canadian Lender way of Bankers’ Acceptances, shall mature on advise the last day applicable Revolving Lenders of the term thereofnotice and shall advise each such Revolving Lender of the face amount of Bankers’ Acceptances to be accepted by it and the applicable Contract Period (which shall be identical for all Revolving Lenders). All The aggregate face amount of Bankers’ Acceptances to be accepted by a particular Canadian Lender shall, at the option of such Canadian 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 Canadian Revolving Lender shall be held in safekeeping with determined by the same degree of care as if they were Administrative Agent by reference to such Canadian Revolving Lender’s own property being kept at Applicable Percentage of the place at issue of Bankers’ Acceptances, except that, if the face amount of a Bankers’ Acceptance which they are to would otherwise be held. The Canadian Borrower mayaccepted by a Revolving Lender would not be CAD$100,000, or a whole multiple thereof, the face amount shall be increased or reduced by written notice to the Canadian Administrative Agent, designate persons other than Authorized Officers authorized to give the Canadian Administrative Agent instructions regarding the manner in which Drafts are its sole discretion to be completed and the times at which they are to be issued; provided however that receipt by the Canadian Administrative Agent of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation intoCAD$l00,000, Bankers’ Acceptances shall be deemed to be sufficient authority from Authorized Officers or such designated persons for each of the Canadian Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian Lenders nor any nearest whole multiple of their respective directorsthat amount, officers, employees or representatives shall be liable for any action taken or omitted to be taken by any of them under this Section 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction.
(h) The Canadian appropriate. Each Borrower waives presentment for payment and any other defense to the payment of any amounts due to a Canadian Revolving Lender in respect of a Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason of the Bankers’ Acceptance being held, at the maturity thereof, by the Canadian such Revolving Lender in its own right and right. On the Canadian specified maturity date of a B/A, or the date of any prepayment thereof in accordance with this Agreement, if earlier, the applicable Borrower agrees not shall pay to claim any days such Revolving Lender that has accepted such B/A the full face amount of grace if the Canadian Lender as holder sues the Canadian Borrower on the Bankers’ Acceptance such B/A (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 amount payable 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 the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature operation of law or otherwise) and the face amount thereof such Revolving Lender shall be entitled to all benefits of, and will make and otherwise be responsible for all payments due and payable on to the last day of the Interest Period applicable thereto.
(i) redeeming holder or any third parties under, such B/A. Whenever the Canadian a Borrower requests a Loan under this Agreement borrowing by way of Bankers’ Acceptances, each Non-Acceptance Non BA Lender shall, in lieu of accepting a Bankers’ Acceptanceand purchasing any B/As, make a Loan (a “BA Equivalent Loan”) to such 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 by way for the account of the applicable Borrower in the same manner as such Lender would have provided the Discount Note 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, and will be deducted from the principal amount equal of such BA Equivalent Loan in 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 Non-Acceptance Lender’s pro rata portion 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. All 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. For greater certainty, all provisions of this Agreement that are applicable to B/As shall also be applicable, mutatis mutandis, to BA Equivalent Loans, and notwithstanding any other provision of this Agreement, all references to principal amounts or any repayment or prepayment of any Loans that are applicable to B/As or BA Drawings shall be deemed to refer to the full face amount thereof in the 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 Interest Contract Period for Bankers’ Acceptances accepted and purchased on the same Borrowing date of the Borrowing in respect of the same BA Loan;
(ii) borrowing; 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 Applicable Stamping Acceptance Fee in respect of a Bankers’ Acceptance; and
(iii) and the proceeds from Discount Rate applicable to a BA Equivalent Loan 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, as the case may be, in respect of the same borrowing for the relevant Contract Period. At the option of the applicable Borrower and any Revolving Lender, Bankers’ Acceptances under this 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). All depository bills so issued shall be governed by the provisions of this Section 2.23. Upon acceptance of a Bankers’ Acceptance by a Revolving Lender, the applicable Borrower shall pay to the Administrative Agent on behalf of such Revolving Lender a fee (the “Acceptance Fee”) calculated on the face amount of the Bankers’ Acceptance at a rate per annum equal to the BA Discount Proceeds Applicable Rate on the basis of the Discount Notenumber of days in the Contract Period for such Bankers’ Acceptance. Any adjustment to the Acceptance Fee (including any adjustment as necessary to reflect the operation of Section 2.12(d)) shall be 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 Administrative Agent on behalf of 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 1 contract
Bankers’ Acceptances. (a) The Each Canadian Administrative AgentDollar Lender, promptly following receipt of severally and not jointly, agrees upon the terms and subject to the conditions hereof, to accept and discount Bankers' Acceptances for LGEC on any Business Day and from time to time from the Closing Date to but excluding the Commitment Termination Date, each in a Notice of Borrowing or Notice of Continuation, requesting BA Loans, shall advise each applicable Canadian Lender of face amount which when added to the face or principal amount and term of each BA Loan to be accepted (and purchased) or advanced by it. The aggregate face or principal amount of BA all Canadian Dollar Loans then outstanding to be accepted or advanced by a Canadian LGEC from such Lender shall be determined by the Canadian Administrative Agent by reference to that Canadian Lender’s applicable pro rata portion of the issue or advance of BA Loans, except that and the aggregate face amount of outstanding Bankers’ ' Acceptances to which have been accepted by such Lender, does not exceed such Lender's Canadian Dollar Credit Commitment. Furthermore, no Bankers' Acceptance shall be accepted by if, as a result thereof, either (i) the applicable sum of the aggregate principal amount of all Canadian Dollar Loans then outstanding plus the then current BA Exposure would exceed the Total Canadian Dollar Credit Commitment then in effect or (ii) the sum of the aggregate principal amount of all U.S. Dollar Loans then outstanding plus the then current L/C Exposure plus the U.S. Dollar Equivalent of the aggregate principal amount of all Canadian Dollar Loans then outstanding plus the U.S. Dollar Equivalent of the then current BA Exposure would exceed the Borrowing Base. Subject to Section 2.3(b) hereof, Bankers' Acceptances shall be accepted at such times as LGEC shall request, but the Canadian Dollar Lenders shall not be increased or reduced by the Canadian Administrative Agent in its sole discretion as may be necessary required to ensure that the face amount of the accept Bankers’ Acceptance to be accepted by ' Acceptances hereunder more often than once each applicable Canadian Lender would be C$100,000 or a whole multiple thereof. For greater certainty, the foregoing C$100,000 minimum face amount of Bankers’ Acceptances for each Lender shall not apply to BA Equivalent Loanscalendar week.
(b) On LGEC agrees to pay to each Canadian Dollar Lender an acceptance commission (the "Acceptance Fee"), with respect to each Bankers' Acceptance accepted by such Canadian Dollar Lender, calculated at a rate of 2.5% per annum on the face amount of such Bankers' Acceptance, for the period from the date specified in a Notice of Borrowing or Notice of Continuation on which a BA Loan is to be madesuch Bankers' Acceptance, the Canadian Administrative Agent shall advise the Canadian Borrower as to the Canadian Administrative Agent’s determination date of its maturity, payable in full on the date of such discounting of such Bankers' Acceptance and on the basis of a year of 365 days. Payment of the BA Discount Rate Acceptance Fee with respect to each Bankers' Acceptance created by each Canadian Lender shall be made for the BA Loans to be purchased or advanced, account of LGEC by such Canadian Lender's deducting the amount of the Acceptance Fee from the proceeds of discounting such Bankers' Acceptance as the case may becontemplated by Section 2.3(d) hereof.
(c) The LGEC shall give the Administrative Agent and the Canadian Borrower Agent prior written, facsimile or telephonic (promptly confirmed in writing) notice of each request for a Bankers' Acceptance hereunder; such notice shall sell be irrevocable. Such notice, to be effective, must be received by the Administrative Agent and each the Canadian Agent not later than 12:00 noon, Montreal, Quebec time on the second Business Day preceding the date on which such Bankers' Acceptance is to be made. Such notice shall specify the amount of the proposed Bankers' Acceptance, the date thereof (which shall be a Business Day) and the maturity date with respect thereto. Each Bankers' Acceptance draft tendered by LGEC for acceptance by a Canadian Dollar Lender shall purchase be in a form acceptable to the Bankers’ Acceptance accepted accepting Canadian Dollar Lenders and shall have a term of one, two or three months or, if available, six months, unless otherwise agreed to by it at the applicable BA Discount Rate. Subject to clause (d) below, each Canadian Lender shall provide all the Canadian Administrative AgentDollar Lenders. If no election of a maturity date is specified in such notice, such notice shall be deemed a request for a maturity date of one month. The term of each Banker's Acceptance shall expire on a Business Day and shall, in any event, expire no later than the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping Fee payable by the Canadian Borrower with respect tenth Business Day prior to the Bankers’ AcceptanceCommitment Termination Date.
(d) In The Canadian Agent shall promptly notify each Canadian Dollar Lender of its Pro Rata Share of each Bankers' Acceptance request under Section 2.3(c), the event date of such Bankers' Acceptance and the maturity date applicable thereto. On the date for acceptance specified in such notice, each Canadian Dollar Lender shall accept a Bankers' Acceptance draft in the amount of its Pro Rata Share of the Bankers' Acceptance request no later than 1:00 p.m. Montreal, Quebec time. Upon acceptance of a Bankers' Acceptance draft by a Canadian Dollar Lender, such Lender shall purchase, or arrange for the purchase of, such Bankers' Acceptance from LGEC at the Bankers' Acceptance Rate for each such Lender applicable to such Bankers' Acceptance accepted by it and provide to the Canadian Borrower requests a continuation Agent the Discount Proceeds. Upon the receipt of BA Loans for a further Interest Period, or requests conversion from such funds by the Canadian Prime Loans into BA Loans in accordance with Section 2.6Agent, the Canadian Administrative Agent shall make arrangements satisfactory disburse such funds by depositing them directly to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the Canadian Borrower should concurrently pay account specified to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceedsby LGEC in writing.
(e) Each LGEC shall pay to the Canadian Lender may from Agent on the maturity date of each Bankers' Acceptance an amount equal to the face amount of such maturing Bankers' Acceptance; provided, however, that LGEC may, at its option, so reimburse the Canadian Dollar Lenders, in whole or in part, by delivering to the Canadian Agent and the Administrative Agent no later than 10:00 a.m. Montreal, Quebec time two Business Days prior to time holdthe maturity date of such maturing Bankers' Acceptance, sella request to rollover such Bankers' Acceptance and by presenting drafts to the Canadian Agent for acceptance and purchase having, rediscount in the case of reimbursement in whole by replacement Bankers' Acceptances, an aggregate face amount such that the Discount Proceeds thereof will equal the face amount of such maturing Bankers' Acceptance. Prior to the Commitment Termination Date, in the event that LGEC fails to adequately reimburse the Canadian Dollar Lenders as set forth above and in Section 2.10(l), the face amount of such maturing Bankers' Acceptance shall be deemed to be converted to a Canadian Prime Rate Loan on the relevant maturity date, provided that no default or otherwise dispose Event of any Default has occurred and is continuing. If LGEC fails to adequately reimburse the Canadian Dollar Lenders as set forth above and in Section 2.10(1) after the Commitment Termination Date or all Bankers’ Acceptances accepted if an Event of Default has occurred and purchased by itis continuing, LGEC shall pay to the Canadian Agent for the benefit of the Canadian Dollar Lenders interest at 2% in excess of the rate then in effect for Canadian Prime Rate Loans.
(f) In order to facilitate LGEC renounces and shall not claim any days of grace for the issuance of Bankers’ Acceptances pursuant to this Agreement, the Canadian Borrower hereby authorizes each of the Canadian Lenders, and appoints each of the Canadian Lenders as the Canadian 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 Borrowing or Notice of Continuation 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, signed, endorsed and negotiated on behalf of the Canadian Borrower by a Canadian Lender shall bind the Canadian Borrower as fully and effectively as if so performed by an Authorized Officer of the Canadian Borrower. Each draft payment of a Bankers’ Acceptance completed' Acceptance.
(g) Pursuant to the DBNA, signed or endorsed by a Canadian Lender shall mature on the last day of the term thereof. All all Bankers’ ' Acceptances to be accepted by a particular the Canadian Lender shall, at the option of such Canadian Lender, Dollar Lenders under this Credit Agreement shall be issued in the form of a "depository bills made payable originally to and xxxx" (as defined in the DBNA), deposited with The the Canadian Depository for Securities Limited pursuant Ltd. ("CDS") and will be made payable to CDS or its nominee. In order to give effect to the foregoing, the Canadian Agent shall establish and notify LGEC and the Canadian Dollar Lenders of any additional procedures, consistent with the terms of this Credit Agreement as are necessary to accomplish such intention, including, without limitation, (x) any instrument held by the Canadian Agent or any Canadian Dollar Lender for the purposes of Bankers' Acceptances shall have marked prominently and legibly on its face and within its text, at or before the time of issue, the words "This is a depository xxxx subject to the Depository Bills and Notes Act (Canada).
"; (gy) Any Drafts to be used for Bankers’ Acceptances which are held by a Canadian Lender shall be held in safekeeping with the same degree of care as if they were such Canadian Lender’s own property being kept at the place at which they are to be held. The Canadian Borrower may, by written notice any reference to the Canadian Administrative Agent, designate persons other than Authorized Officers authorized authentication of the Bankers' Acceptance will be removed; and (z) any reference to give the Canadian Administrative Agent instructions regarding the manner in which Drafts are to "bearer" will be completed removed and the times at which they are to be issued; provided however that receipt by the Canadian Administrative Agent of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation into, such Bankers’ ' Acceptances shall not be deemed to be sufficient authority from Authorized Officers marked with any words prohibiting negotiation, transfer or such designated persons for each assignment of the Canadian Lenders to complete, and issue drafts it or of an interest in accordance with such notice. None of the Canadian Administrative Agent or the Canadian 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 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdictionit.
(h) LGEC hereby appoints each Canadian Dollar Lender, acting by any authorized signatory of such Lender, the attorney of LGEC: (x) to execute for and on behalf and in the name of LGEC as drawer, drafts in such Lender's standard form; (y) to complete the amount, date and maturity date of such Bankers' Acceptances; and (z) to deposit such Bankers' Acceptances which have been accepted by such Lender with the CDS; provided, that such acts in each case are to be undertaken by such Lender in accordance with instructions given to such Lender by LGEC as provided in this Section. For the avoidance of doubt, signatures of any authorized signatory of such Lender may be mechanically reproduced in facsimile on Bankers' Acceptances and such facsimile signatures shall be binding and effective as if they had been manually executed by such authorized signatory of such Lender. Instructions from the Borrower to such Lender relating to the execution, completion, endorsement, discount and/or delivery by such Lender on behalf of the Borrower of Bankers' Acceptances shall be communicated by the Canadian Agent to such Lender in accordance with this Credit Agreement.
(i) The Canadian Borrower waives presentment Agent and the Canadian Dollar Lenders shall not be liable for payment and any other defense to the payment damage, loss or improper use of any amounts due bankers' acceptance draft endorsed in blank except for any loss arising by reason of the Canadian Agent's or such Lender's failing to a use the same standard of care in the custody of such bankers' acceptance drafts as the Canadian Agent or such Lender uses in respect the custody of its own property of a similar nature.
(j) LGEC hereby authorizes each Canadian Dollar Lender to complete, stamp, hold, sell, rediscount or otherwise dispose of all Bankers’ Acceptance ' Acceptances accepted and purchased by it pursuant to this Agreement which might exist solely by reason of the Bankers’ Acceptance being held, at the maturity thereof, by the Canadian Lender in its own right Section 2.3. and the Canadian Borrower agrees not to claim any days of grace if the Canadian Lender as holder sues the Canadian Borrower on the Bankers’ Acceptance for payment of the amount payable by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature and the face amount thereof shall be due and payable on the last day of the Interest Period applicable thereto.
(i) Whenever the Canadian Borrower requests a 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 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 Discount Note shall be the same as the Interest Period for Bankers’ Acceptances accepted on the same date of the Borrowing in respect of the same BA Loan;
(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 Applicable Stamping Fee in respect of a Bankers’ Acceptance; and
(iii) the proceeds from a BA Equivalent Loan shall be equal to the BA Discount Proceeds of the Discount Note.Section
Appears in 1 contract
Samples: Credit, Security, Guaranty and Pledge Agreement (Lions Gate Entertainment Corp /Cn/)
Bankers’ Acceptances. (a) The Subject to the terms and conditions of this Agreement, Canadian Borrower may request a Canadian Revolving Loan denominated in Canadian Dollars by presenting drafts for acceptance and, if applicable, purchase as B/As by the Canadian Revolving Lenders.
(b) A Lender shall not be obliged to either accept any draft presented for acceptance or advance any B/A Equivalent Loan:
(i) which is drawn on, or where the Contract Period applicable thereto expires, on a day which is not a Business Day;
(ii) where the Contract Period applicable thereto matures on a day subsequent to the Canadian Revolver Termination Date;
(iii) where the Contract Period applicable thereto has a term other than approximately 30, 60, 90 or 180 days;
(iv) which is denominated in any currency other than Canadian Dollars;
(v) which is not in a form satisfactory to such Canadian Revolving Lender or Canadian Administrative Agent;
(vi) for a continuation, promptly in respect of which the Canadian Borrower has not then paid the applicable Acceptance Fee; or
(vii) if an Unmatured Event of Default or an Event of Default has occurred and is continuing.
(c) To facilitate availment of B/A Loans, Canadian Borrower hereby appoints each Canadian Revolving Lender as its attorney to sign and endorse on its behalf (in accordance with a Notice of Canadian Borrowing or Notice of Canadian Conversion or Continuation relating to a B/A Loan pursuant to Section 2A.5 or Section 2A.6), in handwriting or by facsimile or mechanical signature as and when deemed necessary by such Canadian Revolving Lender, blank drafts in the form requested by such Canadian Revolving Lender. In this respect, it is each Lender’s responsibility to maintain an adequate supply of blank drafts for acceptance under this Agreement. Canadian Borrower recognizes and agrees that all drafts signed and/or endorsed by a Lender on behalf of Canadian Borrower shall bind Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of Canadian Borrower. Each Lender is hereby authorized (in accordance with a Notice of Canadian Borrowing or Notice of Canadian Conversion or Continuation relating to a B/A Loan) to issue such B/As endorsed in blank in such face amounts as may be determined by such Lender, provided that, the aggregate amount thereof is equal to the aggregate amount of drafts required to be accepted and purchased by such Lender. No Lender shall 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 willful misconduct of the Lender or its officers, employees, agents or representatives. Each Lender shall maintain a record, which shall be made available to Canadian Borrower upon its request, with respect to drafts (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder, and (iv) cancelled at their respective maturities. On request by or on behalf of Canadian Borrower, a Lender shall cancel all forms of B/As which have been pre-signed or pre-endorsed on behalf of Canadian Borrower and that are held by such Lender and are not required to be issued in accordance with Canadian Borrower’s irrevocable notice. Canadian Borrower agrees that “draft” includes and the provisions of this Section 2A.9 applicable to a “draft” includes, and shall apply, mutatis mutandis, to, a “depository note” which complies with the requirements of the Depository Bills and Notes Act (Canada), and Canadian Borrower consents to the deposit of any such depository note in the book-based debt clearance system maintained by the Canadian Depository for Securities.
(d) Drafts of Canadian Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2A.9. Notwithstanding that any Person whose signature appears on any B/A may no longer be an authorized signatory for any Lender or 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 Canadian Borrower.
(e) Promptly following the receipt of a Notice of Canadian Borrowing or Notice of ContinuationCanadian Conversion or Continuation specifying a Loan by way of B/As, requesting BA Loans, Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each applicable Canadian such Lender of the face or principal amount and term of each BA Loan to be accepted (and purchased) or advanced by it. The aggregate face or principal amount of BA Loans to be accepted or advanced by a Canadian Lender shall be determined by the Canadian Administrative Agent by reference to that Canadian Lender’s applicable pro rata portion of the issue or advance of BA Loans, except that the aggregate face amount of Bankers’ Acceptances the B/As to be accepted by it and the applicable Canadian Lenders Contract Period (which shall be increased or reduced identical for all such Lenders). In the case of Loans comprised of B/A Loans, the aggregate face amount of the B/As to be accepted by a Lender shall be in a minimum aggregate amount of Cdn.$500,000 and shall be a whole multiple of Cdn.$100,000, and such face amount shall be in the Lenders’pro rata portions of such Loan, provided that, Canadian Administrative Agent may in its sole discretion as may be necessary increase or reduce any Lender’s portion of such B/A Loan to ensure that the face amount nearest Cdn.$100,000.
(f) On the date of each issuance of B/As in accordance with this Section 2A.9, each Lender shall purchase from Canadian Borrower each B/A accepted by it for a purchase price equal to the applicable Discount Proceeds determined on the basis of the Bankers’ Discount Rate, and (except to the extent such Discount Proceeds are being applied to repay maturing B/As or Canadian Prime Rate Loans to be converted in accordance with Section 2A.6) shall remit not later than 2:00 p.m. (Eastern time) in immediately available funds to Canadian Administrative Agent for the account of Canadian Borrower at the Payment Office the Discount Proceeds so determined less the Acceptance Fee payable by Canadian Borrower to such Lender under Section 3.1(d) in respect of such B/As. Unless Canadian Administrative Agent determines that any applicable condition specified in Article V has not been satisfied, Canadian Administrative Agent will make the funds so received from Canadian Revolving Lenders available to Canadian Borrower at the Payment Office.
(g) Each B/A to be accepted by each applicable Canadian Lender would be C$100,000 or a whole multiple thereof. For greater certainty, the foregoing C$100,000 minimum face amount of Bankers’ Acceptances for each Lender shall not apply to BA Equivalent Loans.
(b) On the date specified in a Notice of Borrowing or Notice of Continuation on which a BA Loan is to be made, the accepted at its Canadian Administrative Agent shall advise the Canadian Borrower as to the Canadian 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 Canadian Borrower shall sell and each Canadian Lender shall purchase the Bankers’ Acceptance accepted by it at the applicable BA Discount RateLending Office. Subject to clause (d) below, each Canadian Lender shall provide the Canadian Administrative Agent, for the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping Fee payable by the Canadian Borrower with respect to the Bankers’ Acceptance.
(d) In the event the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6, the Canadian Administrative Agent shall make arrangements satisfactory to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the Canadian Borrower should concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(e) Each Canadian Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances B/As accepted and purchased by it.
(fh) In anticipation of the maturity of B/As, Canadian Borrower shall, subject to and in accordance with the requirements hereof, do one or a combination of the following with respect to the aggregate face amount at maturity of all such B/As:
(i) (A) deliver to Canadian Administrative Agent a Notice of Canadian Continuation that Canadian Borrower intends to draw and present for acceptance on the maturity date new B/As in an aggregate face amount up to the aggregate amount of the maturing B/As and (B) on the maturity date pay to Canadian Administrative Agent for the account of the applicable Canadian Revolving Lenders an additional amount equal to the positive difference, if any, between the aggregate face amount of the maturing B/As and the Discount Proceeds of such new B/As;
(ii) (A) deliver to Canadian Agent a Notice of Canadian Conversion requesting a conversion of the maturing B/As to another Type of Canadian Revolving Loan and (B) on the maturity date pay to the Canadian Administrative Agent for the account of the applicable Canadian Revolving Lenders an amount equal to the positive difference, if any, between the aggregate face amount of the maturing B/As and the amount of the Loans into which conversion is requested; or
(iii) on the maturity date of the maturing B/As, pay to Canadian Administrative Agent for the account of the applicable Canadian Revolving Lenders an amount equal to the aggregate face amount of such B/As. If Canadian Borrower fails to so notify Canadian Administrative Agent or make such payments on maturity, Canadian Administrative Agent shall effect a conversion into a Canadian Prime Rate Loan of the entire amount of such maturing B/As as if a Notice of Canadian Conversion had been given by Canadian Borrower to Canadian Administrative Agent to that effect.
(i) Subject to the other provisions hereof, conversions and continuations of B/As may only occur on the maturity date thereof.
(j) In order to facilitate satisfy the issuance continuing liability of Bankers’ Acceptances Canadian Borrower to an applicable Lender for the face amount of maturing B/As accepted by such Canadian Revolving Lender, such Canadian Revolving Lender shall receive and retain for its own account the Discount Proceeds of new B/As issued on a continuation thereof, and Canadian Borrower shall on the maturity date of the continued B/As pay to Canadian Administrative Agent for the account of the applicable Canadian Revolving Lenders an amount equal to the difference between the face amount of the then maturing B/As and the Discount Proceeds from the new B/As, together with the Acceptance Fees to which the applicable Canadian Revolving Lenders are entitled pursuant to this Agreementthe provisions hereof.
(k) In respect of conversions into B/As, in order to satisfy the continuing liability of Canadian Borrower hereby authorizes each to the applicable Canadian Revolving Lenders for the amount of the converted Loan, each applicable Canadian LendersRevolving Lender shall receive and retain for its own account the Discount Proceeds of the B/As issued upon such conversion, and appoints each Canadian Borrower shall on the conversion date pay to Canadian Administrative Agent for the account of the applicable Canadian Revolving Lenders as an amount equal to the positive difference, if any, between the principal amount of the converted Loan and the aggregate Discount Proceeds from the B/As issued on such conversion, together with the Acceptance Fees to which the applicable Canadian Borrower’s attorney, Revolving Lenders are entitled pursuant to complete, sign and endorse drafts or depository bills the provisions hereof.
(as defined in l) If a Lender is not a chartered bank under the Depository Bills and Notes Bank Act (Canada) or if a Lender notifies Canadian Administrative Agent in writing that it is otherwise unable to accept Bankers’ Acceptances, such Lender will, instead of accepting and purchasing Bankers’ Acceptances, make an advance (each such executed draft or xxxx being herein referred to as a “DraftB/A Equivalent Loan”) on its behalf to Canadian Borrower in handwritten form or by facsimile or mechanical signature or the amount and for the same term as the draft that such Lender would otherwise in accordance with the applicable Notice of Borrowing or Notice of Continuation and, once so completed, signed and endorsed have been required to accept them as Bankers’ Acceptances under this Agreement and then if applicablepurchase hereunder. Each such Lender will provide to Canadian Administrative Agent the Discount Proceeds of such B/A Equivalent Loan for the account of Canadian Borrower, purchase, discount or negotiate such Bankers’ Acceptances in accordance with less the provisions of this Agreement. Drafts so completed, signed, endorsed and negotiated on behalf of Acceptance Fee payable by the Canadian Borrower by to such Lender in respect of such B/A Equivalent Loan. Each such B/A Equivalent Loan will bear interest at the same rate that would result if such Lender had accepted and purchased (on a Canadian Lender 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 bind have the same economic consequences for the applicable Lenders and Canadian Borrower as fully the Bankers’ Acceptance which such B/A Equivalent Loan replaces). All such interest shall be paid in advance on the date such B/A Equivalent Loan is made, and effectively as if so performed by an Authorized Officer will be deducted from the principal amount of such B/A Equivalent Loan in the Canadian Borrower. Each draft same manner in which the discount to the purchase price of a Bankers’ Acceptance completed, signed or endorsed by a Canadian Lender shall mature on would be deducted from the last day face amount of the term thereof. All Bankers’ Acceptances to be accepted by a particular Canadian Lender shall, at the option of such Canadian 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)Acceptance.
(gm) Any Drafts to be used for Bankers’ Acceptances which are held by a Canadian Lender shall be held in safekeeping with the same degree of care as if they were such Canadian Lender’s own property being kept at the place at which they are to be held. The Canadian Borrower may, by written notice to the Canadian Administrative Agent, designate persons other than Authorized Officers authorized to give the Canadian 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 Canadian Administrative Agent of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation into, Bankers’ Acceptances shall be deemed to be sufficient authority from Authorized Officers or such designated persons for each of the Canadian Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian 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 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction.
(h) The Canadian Borrower waives presentment for payment and any other defense to the payment of any amounts due to a Canadian Lender in respect of a Bankers’ Acceptance B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of the Bankers’ Acceptance such B/A being held, at the maturity thereof, by the Canadian such Lender in its own right right, and the Canadian Borrower agrees not to claim any days of grace if the Canadian Lender such Lender, as holder holder, sues the Canadian Borrower on the Bankers’ Acceptance B/A for payment of the amount payable by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature Unless Canadian Borrower has requested and Canadian Revolving Lenders have granted a continuation of such B/A Loan in accordance with the face amount thereof shall be due and payable provisions of this Agreement, on the last day of the Interest Contract Period applicable thereto.of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, Canadian Borrower shall pay the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and, after such payment, Canadian Borrower shall have no further liability in respect of such B/A and such Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A.
(in) Whenever Except as required by any Lender upon the occurrence of an Event of Default, no B/A Loan may be repaid by Canadian Borrower requests a 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 prior to the Non-Acceptance Lender’s pro rata portion of the 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 Discount Note shall be the same as the Interest Period for Bankers’ Acceptances accepted on the same expiry date of the Borrowing in respect of the same BA Contract Period applicable to such B/A Loan;
(ii) an acceptance fee will ; provided, however, that any B/A Loan may be payable in respect of a Discount Note and shall be calculated at the same rate and defeased as provided in the same manner as the Applicable Stamping Fee in respect of a Bankers’ Acceptance; and
(iii) the proceeds from a BA Equivalent Loan shall be equal proviso to the BA Discount Proceeds of the Discount NoteSection 4.3(d).
Appears in 1 contract
Samples: Credit Agreement (Ball Corp)
Bankers’ Acceptances. (a) The Each Banker's Acceptance tendered by the Canadian Administrative Agent, promptly following receipt of a Notice of Borrowing or Notice of Continuation, requesting BA Loans, shall advise each applicable Canadian Lender of the face or principal amount and term of each BA Loan to be accepted (and purchased) or advanced by it. The aggregate face or principal amount of BA Loans to be accepted or advanced Borrower for acceptance by a Canadian Lender under the Canadian Revolving Facility shall be determined denominated in Canadian Dollars and be payable in Canada. The Canadian Borrower acknowledges that the Canadian Lenders may require the delivery of drafts which are in conformity with the rules and procedures of a clearing house (as that term in defined in the DEPOSITORY BILLS AND NOTES ACT (Canada)) used by the Canadian Administrative Agent by reference to that Canadian Lender’s applicable pro rata portion Lenders for the delivery, transfer and collection of the issue or advance of BA Loans, except that the aggregate face amount of Bankers’ Acceptances to be accepted by the applicable Canadian Lenders shall be increased or reduced by the Canadian Administrative Agent in its sole discretion as may be necessary to ensure that the face amount of the Bankers’ Acceptance to be accepted by each applicable Canadian Lender would be C$100,000 or a whole multiple thereof. For greater certainty, the foregoing C$100,000 minimum face amount of Bankers’ Acceptances for each Lender shall not apply to BA Equivalent Loansbankers' acceptances and depository bills.
(b) On The Borrower shall provide for each accepted draft at its maturity to the date specified Canadian Agent either by payment of the full principal amount thereof or through utilization of the Canadian Revolving Facility in accordance with this Agreement or through a Notice combination thereof. The Canadian Borrower may not at any time request that any Bankers' Acceptance be issued if the face amount of Borrowing or Notice such requested Bankers' Acceptance together with the aggregate of Continuation on which a BA Loan is the other outstanding Loans under the Canadian Revolving Facility, would exceed the amount available to be made, drawdown under the Canadian Administrative Agent shall advise Revolving Facility at such time. Any amount owing by the Canadian Borrower as in respect of any Bankers' Acceptance which is not paid or provided for in accordance with the foregoing shall be deemed to be a Prime Rate Loan owing by the Canadian Borrower to the Canadian Administrative Agent’s determination Lenders and shall be subject to all of the BA Discount provisions of this Agreement applicable to a Prime Rate for Loan. The Canadian Borrower hereby authorizes the BA Loans Canadian Lenders to be purchased or advanced, debit its account by the amount required to pay any such drafts made by it and accepted as the case may bea Bankers' Acceptance hereunder which is not otherwise paid.
(c) The If an Event of Default shall have occurred and shall then be continuing unremedied not waived by the Lenders (whether or not demand is made), the Canadian Borrower shall sell and each Canadian Lender shall purchase the Bankers’ Acceptance accepted by it at the applicable BA Discount Rate. Subject forthwith pay to clause (d) below, each Canadian Lender shall provide the Canadian Administrative Agent, Agent an amount equal to the Canadian Lender's maximum potential liability under all such outstanding Bankers' Acceptances. Such amount shall be held by the Canadian Agent as general and continuing cash collateral for payment of the account indebtedness and liability of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping Fee payable by Borrower to the Canadian Borrower with Lenders in respect of such Bankers' Acceptances and any other obligations to the Bankers’ AcceptanceCanadian Lenders.
(d) In the event the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6, the Canadian Administrative Agent shall make arrangements satisfactory to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the Canadian Borrower should concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(e) Each Canadian Lender may from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances accepted and purchased by it.
(f) In order to To facilitate the issuance acceptance of Bankers’ ' Acceptances pursuant to this Agreementhereunder, the Canadian Borrower hereby authorizes each of the Canadian Lenders, Lenders and irrevocably appoints each of the Canadian Lenders as its attorney:
(i) to complete and sign on the Canadian Borrower’s attorney's behalf, 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 either manually or by facsimile or mechanical signature signature, the drafts to create the Bankers' Acceptances (with, in the Canadian Lender's discretion, the inscription "This is a depository xxxx subject to the DEPOSITORY BILLS AND NOTES ACT (Canada));
(ii) after the acceptance thereof by the applicable Canadian Lender, to endorse on the Canadian Borrower's behalf, either manually or otherwise by facsimile or mechanical signature, such Bankers' Acceptances in accordance favour of the applicable purchaser or endorsee thereof including, in the Canadian Lender's discretion, the Canadian Lender or a clearing house (as defined by the DEPOSITORY BILLS AND NOTES ACT (Canada));
(iii) to deliver such Bankers' Acceptances to such purchaser or to deposit such Bankers' Acceptances with such clearing house; and
(iv) to comply with the applicable Notice procedures and requirements established from time to time by the Canadian Lenders or such clearing house in respect of Borrowing or Notice the delivery, transfer and collection of Continuation and, once so completed, signed bankers' acceptances and endorsed to accept them as depository bills. All 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 endorsed, delivered or deposited by a Canadian Lender on behalf of the Canadian Borrower by a Canadian Lender shall bind be binding upon the Canadian Borrower as fully if completed, signed, endorsed, delivered or deposited by it. The records of the Canadian Lenders and effectively as if so performed by an Authorized Officer such clearing house shall, in the absence of manifest error, be conclusively binding on the Canadian Borrower. Each draft The Lenders shall not be liable for any claim arising by reason of any loss or improper use of such drafts or Bankers' Acceptances except for damages suffered by the Canadian Borrower caused by the intentional misconduct or gross negligence of a Canadian Lender.
(e) The Borrowers shall not claim any days of grace for the payment at maturity of any drafts presented and accepted as Bankers’ Acceptance completed, signed or endorsed ' Acceptances hereunder.
(f) When the Canadian Borrower wishes to make a Borrowing by a way of Bankers' Acceptances it shall give the Canadian Lender Agent the notice required pursuant to Section 2.2. Bankers' Acceptances shall mature on the last day have terms of the term thereof. All Bankers’ Acceptances to be accepted by a particular Canadian Lender at least 1 month and not more than 6 months excluding days of grace (and which shall, at in no event, end on a date after the option of such Canadian 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 (CanadaFinal Maturity Date).
(g) Any Drafts to be used for Bankers’ Acceptances which are held by a Canadian Lender shall be held in safekeeping with On the same degree of care as if they were day it receives such Canadian Lender’s own property being kept at the place at which they are to be held. The Canadian Borrower maynotice, by written notice to the Canadian Administrative Agent, designate persons other than Authorized Officers authorized to give the Canadian Administrative Agent instructions regarding the manner shall notify by telephone or in which Drafts are to be completed and the times at which they are to be issued; provided however that receipt by the Canadian Administrative Agent of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation into, Bankers’ Acceptances shall be deemed to be sufficient authority from Authorized Officers or such designated persons for each of writing all the Canadian Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian 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 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction.
(h) The Canadian Borrower waives presentment for payment and any other defense to the payment of any amounts due to a Canadian Lender in respect of a Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason details of the Bankers’ Acceptance being heldproposed issue, at the maturity thereofspecifying, by the for each Canadian Lender in its own right and the Canadian Borrower agrees not to claim any days of grace if the Canadian Lender as holder sues the Canadian Borrower on the Bankers’ Acceptance for payment of the amount payable by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature and the face amount thereof shall be due and payable on the last day of the Interest Period applicable thereto.
(i) Whenever the Canadian Borrower requests a 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 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 Discount Note shall be the same as the Interest Period for Bankers’ Acceptances accepted on the same date Principal Amount of the Borrowing in respect of the same BA Loan;Bankers' Acceptances to be accepted and purchased by such Canadian Lender; and
(ii) an acceptance fee will be payable in respect the term of a Discount Note and shall be calculated at the same rate and in the same manner as the Applicable Stamping Fee in respect of a such Bankers’ Acceptance; and
(iii) the proceeds from a BA Equivalent Loan shall be equal to the BA Discount Proceeds of the Discount Note' Acceptances.
Appears in 1 contract
Samples: Credit Agreement (Firstservice Corp)
Bankers’ Acceptances. (a) The Canadian Administrative Agent, promptly following receipt of a Notice of Borrowing or Notice of Continuation, requesting BA Loans, shall advise each applicable Canadian Lender of the face or principal amount and term of each BA Loan to be accepted (and purchased) or advanced by it. The aggregate face or principal amount of BA Loans to be accepted or advanced by a Canadian Lender shall be determined by the Canadian Administrative Agent by reference to that Canadian 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 Canadian Lenders shall be increased or reduced by the Canadian Administrative Agent in its sole discretion as may be necessary to ensure that the face amount of the Bankers’ Acceptance to be accepted by each applicable Canadian Lender would be C$100,000 or a whole multiple thereof. For greater certainty, the foregoing C$100,000 minimum face amount of Bankers’ Acceptances for each Lender shall not apply to BA Equivalent Loans.
(b) On the date specified in a Notice of Borrowing or Notice of Continuation on which a BA Loan is to be made, the Canadian Administrative Agent shall advise the Canadian Borrower as to the Canadian 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 Canadian Borrower shall sell and each Canadian Lender shall purchase the Bankers’ Acceptance accepted by it at the applicable BA Discount Rate. Subject to clause (d) below, each Canadian Lender shall provide the Canadian Administrative Agent, for the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping Fee payable by the Canadian Borrower with respect to the Bankers’ Acceptance.
(d) In the event the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6, the Canadian Administrative Agent shall make arrangements satisfactory to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the Canadian Borrower should concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(e) Each Canadian Lender may from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances accepted and purchased by it.
(f) In order to To facilitate the issuance of Bankers’ Acceptances pursuant to this Agreement, the Canadian Borrower hereby authorizes irrevocably appoints each Lender from time to time as the attorney-in-fact of the Canadian LendersBorrower to execute, endorse and appoints each deliver on behalf of the Canadian Lenders as the Canadian Borrower’s attorney, to complete, sign and endorse Borrowers drafts or depository bills (as defined in the Depository Bills and Notes Act forms prescribed by such Lender (Canadaif such Lender is a BA Lender) for Bankers’ Acceptances denominated in Cdn. Dollars (each such executed draft or xxxx that has not yet been accepted by a Lender being herein referred to as a “Draft”) on its behalf or non interest-bearing promissory notes of the Canadian Borrower in handwritten form or by facsimile or mechanical signature or otherwise in accordance with the applicable Notice favor of Borrowing or Notice of Continuation and, once so completed, signed and endorsed such Lender (if such Lender is a Non BA Lender) (each such promissory note being referred to accept them as a “BA Equivalent Note”). Each Bankers’ Acceptances under this Agreement Acceptance and then if applicable, purchase, discount or negotiate such Bankers’ Acceptances in accordance with the provisions of this Agreement. Drafts so completed, signed, endorsed BA Equivalent Note executed and negotiated delivered by a Lender on behalf of the Canadian Borrower as provided for in this Section 2.06 will be as binding upon the Borrowers as if it had been executed and delivered by a Canadian Lender shall bind duly authorized officer of each of the Borrowers.
(b) Notwithstanding the provisions of Section 2.06(a), the Canadian Borrower will from time to time as fully and effectively as if so performed required by the applicable Lender provide to (a) each BA Lender an Authorized Officer appropriate number of Drafts drawn by the Canadian BorrowerBorrower upon such 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 (b) each Non BA Lender an appropriate number of BA Equivalent Notes in favor of such Non BA Lender. The dates, maturity dates and face amounts of all Drafts and BA Equivalent Notes delivered by the Canadian Borrower must be left blank, to be completed by the Lenders as required by this Agreement. Each draft of Lender to which a Bankers’ Acceptance completed, signed Draft or endorsed BA Equivalent Note has been delivered by a the Canadian Lender shall mature on the last day of the term thereof. All Bankers’ Acceptances to be accepted by a particular Canadian Lender shall, at the option of such Canadian 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 Canadian Lender shall be held in safekeeping with Borrower will exercise the same degree of care in the custody of such Draft or BA Equivalent Note as if they were such Canadian Lender’s Lender would exercise with respect to its own property being kept at the place at which they the Drafts or BA Equivalent Notes are ordinarily kept by such Lender. Each Lender, upon the 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 requested by such Lender on a timely basis.
(c) Promptly following receipt of a Loan Notice requesting Bankers’ Acceptances, the Administrative Agent will (a) advise each BA Lender of the face amount and the term of the Draft to be heldaccepted 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 Canadian Borrower may, by written notice to the Canadian Administrative Agent, designate persons other than Authorized Officers authorized to give the Canadian 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 Canadian Administrative Agent term of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation into, all Bankers’ Acceptances shall and BA Equivalent Notes issued pursuant to any Loan Notice must be deemed to identical. Each Bankers’ Acceptance and BA Equivalent Note must be sufficient authority from Authorized Officers dated the date such Bankers’ Acceptance or such designated persons BA Equivalent Note is disbursed and issued and will be for each a term of one, two, three or six months, provided that in no event will the Canadian Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian 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 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction.
(h) The Canadian Borrower waives presentment for payment and any other defense to the payment of any amounts due to a Canadian Lender in respect term of a Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason or a BA Equivalent Note extend beyond the Maturity Date. The face amount of the Bankers’ Acceptance being held, at Draft (or the maturity thereof, by the Canadian Lender in its own right and the Canadian Borrower agrees not to claim any days of grace if the Canadian Lender as holder sues the Canadian Borrower on the Bankers’ Acceptance for payment aggregate face amount of the amount payable Drafts) to be accepted at any time by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature each Lender that is a BA Lender, and the face amount thereof of the BA Equivalent Note (or the aggregate 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; provided, that, if the face amount of a Draft or BA Equivalent Note which would otherwise be accepted or purchased by a Lender would not be Cdn$100,000 or a whole multiple thereof, the face amount shall be due and payable on increased or reduced by the last day Agent in its sole discretion to Cdn$100,000 or the nearest whole multiple of the Interest Period applicable theretothat amount, as appropriate; provided that after such issuance, no Lender shall have aggregate outstanding Loans in excess of its Commitment.
(id) Whenever Each BA Lender will complete and accept on the Canadian Borrower requests a Loan under this Agreement by way of Bankers’ Acceptances, each Non-Acceptance Lender shall, in lieu of accepting applicable date on which a Bankers’ Acceptance, make a Acceptance or BA Equivalent Loan is disbursed, a Draft having a face amount (or Drafts having the face amounts) and term advised by way of Discount Note in an amount equal the Administrative Agent pursuant to Section 2.06(c). Each applicable BA Lender will purchase on the Non-Acceptance Lender’s pro rata portion of the BA Loan. All terms of this Agreement applicable to date on which a Bankers’ Acceptances shall apply equally to Discount Notes evidencing Acceptance or 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 Interest Period for is disbursed all Bankers’ Acceptances accepted on the same date of the Borrowing in respect of the same BA Loan;
(ii) by it, for 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 Applicable Stamping Fee in respect of a Bankers’ Acceptance; and
(iii) the proceeds from a BA Equivalent Loan shall be aggregate price equal to the BA Discount Proceeds of such Bankers’ Acceptances. The Canadian Borrower 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.
(e) Each Non BA Lender, in lieu of accepting Drafts or purchasing Bankers’ Acceptances on any date such Bankers’ Acceptance is disbursed, will complete and purchase from the Canadian Borrower on the date such Bankers’ Acceptance is disbursed, of a 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 such date that such Bankers’ Acceptance is disbursed if it were a BA Lender, for a price equal to the BA Discount Proceeds of 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 exchange any BA Equivalent Note held by it for two or more BA Equivalent Notes of identical date and aggregate face amount, and the Canadian Borrower will execute and deliver to such Non BA Lender such replacement BA Equivalent Notes and such Non BA Lender will return the original BA Equivalent Note to the Canadian Borrower for cancellation.
(f) The Canadian Borrower will pay to each BA Lender in respect of each Draft tendered by the Canadian Borrower to and accepted by such BA Lender, and to each Non BA Lender in respect of each BA Equivalent Note tendered to and purchased by such 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 Canadian Borrower pursuant to this Agreement in respect of the sale of the related Bankers’ Acceptance or of such BA Equivalent Note.
(g) On the date of maturity of each Bankers’ Acceptance or BA Equivalent Note, the Borrowers will pay to the Administrative Agent, for the account of the holder of such Bankers’ Acceptance or BA Equivalent Note, in Cdn. Dollars an amount equal to the face amount of such Bankers’ Acceptance or BA Equivalent Note, as the case may be. The obligation of the Canadian 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 may be claimed by the Canadian Borrower for the payment at maturity of any Bankers’ Acceptance or BA Equivalent Note. If any 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 Cdn. Prime Rate Loan to the Canadian Borrower from the Lender that accepted such Banker’s Acceptance or purchased such BA Equivalent Note.
(h) The signature of any duly authorized officer of the 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 such Draft or BA Equivalent Note or at the date of acceptance of such Draft by a BA Lender or at any time thereafter.
Appears in 1 contract
Bankers’ Acceptances. (a) The Subject to the terms and conditions of this Agreement, Canadian Administrative Agent, promptly following receipt of a Notice of Borrowing or Notice of Continuation, requesting BA Loans, shall advise each applicable Canadian Lender of the face or principal amount and term of each BA Loan to be accepted (and purchased) or advanced by it. The aggregate face or principal amount of BA Loans to be accepted or advanced by Borrower may request a Canadian Lender shall be determined Revolving Loan denominated in Canadian Dollars by presenting drafts for acceptance and, if applicable, purchase as B/A's by the Canadian Administrative Agent by reference to that Canadian 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 Canadian Lenders shall be increased or reduced by the Canadian Administrative Agent in its sole discretion as may be necessary to ensure that the face amount of the Bankers’ Acceptance to be accepted by each applicable Canadian Lender would be C$100,000 or a whole multiple thereof. For greater certainty, the foregoing C$100,000 minimum face amount of Bankers’ Acceptances for each Lender shall not apply to BA Equivalent LoansRevolving Lenders.
(b) On A Canadian Revolving Lender shall not be obliged to either accept any draft presented for acceptance or advance any B/A Equivalent Loan:
(i) which is drawn on, or where the date specified Contract Period applicable thereto expires, on a day which is not a Business Day;
(ii) where the Contact Period applicable thereto matures on a day subsequent to the Canadian Revolver Termination Date;
(iii) where the Contract Period applicable thereto has a term other than approximately 30, 60, 90 or 180 days;
(iv) which is denominated in any currency other than Canadian Dollars;
(v) which is not in a Notice of Borrowing form satisfactory to such Canadian Revolving Lender or Notice of Continuation on which a BA Loan is to be made, the Canadian Administrative Agent shall advise Agent;
(vi) in respect of which the Canadian Borrower as to has not then paid the Canadian Administrative Agent’s determination applicable Acceptance Fee; or
(vii) if an Unmatured Event of the BA Discount Rate for the BA Loans to be purchased Default or advanced, as the case may bean Event of Default has occurred and is continuing.
(c) The To facilitate availment of B/A Loans, Canadian Borrower shall sell and hereby appoints each Canadian Revolving Lender shall purchase the Bankers’ Acceptance accepted by it at the applicable BA Discount Rate. Subject as its attorney to clause sign and endorse on its behalf (d) below, each Canadian Lender shall provide the Canadian Administrative Agent, for the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping Fee payable by the Canadian Borrower with respect to the Bankers’ Acceptance.
(d) In the event the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6, the a Notice of Canadian Administrative Agent shall make arrangements satisfactory Borrowing or Notice of Canadian Conversion or Continuation relating to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the Canadian Borrower should concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(e) Each Canadian Lender may from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances accepted and purchased by it.
(f) In order to facilitate the issuance of Bankers’ Acceptances a B/A Loan pursuant to this AgreementSection 2A.5 or Section 2A.6), the Canadian Borrower hereby authorizes each of the Canadian Lenders, and appoints each of the Canadian Lenders as the Canadian 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 handwriting or by facsimile or mechanical signature or otherwise as and when deemed necessary by such Canadian Revolving Lender, blank drafts in accordance with the applicable Notice form requested by such Canadian Revolving Lender. In this respect, it is each Canadian Revolving Lender's responsibility to maintain an adequate supply of Borrowing or Notice of Continuation and, once so completed, signed and endorsed to accept them as Bankers’ Acceptances blank drafts for acceptance 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, Canadian Borrower recognizes and agrees that all drafts signed and/or endorsed and negotiated by a Canadian Revolving Lender on behalf of the Canadian Borrower by a Canadian Lender shall bind the Canadian Borrower as fully and effectively effectually as if so performed signed in the handwriting of and duly issued by an Authorized Officer the proper signing officers of the Canadian Borrower. Each draft Canadian Revolving Lender is hereby authorized (in accordance with a Notice of Canadian Borrowing or Notice of Canadian Conversion or Continuation relating to a Bankers’ Acceptance completedB/A Loan) to issue such B/A's endorsed in blank in such face amounts as may be determined by such Canadian Revolving Lender, signed or endorsed by a Canadian Lender shall mature on provided that, the last day aggregate amount thereof is equal to the aggregate amount of the term thereof. All Bankers’ Acceptances drafts required to be accepted and purchased by such Canadian Revolving Lender. No Canadian Revolving Lender shall 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 willful misconduct of the Canadian Revolving Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a particular record, which shall be made available to Canadian Borrower upon its request, with respect to drafts (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder, and (iv) cancelled at their respective maturities. On request by or on behalf of Canadian Borrower, a Canadian Revolving Lender shallshall cancel all forms of B/A's which have been pre-signed or pre-endorsed on behalf of Canadian Borrower and that are held by such Canadian Revolving Lender and are not required to be issued in accordance with Canadian Borrower's irrevocable notice. Alternatively, Canadian Borrower agrees that, at the option request of such Canadian LenderAdministrative Agent, be issued in Canadian Borrower shall deliver to Canadian Administrative Agent a "depository note" which complies with the form requirements 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 Canadian Lender shall be held in safekeeping with the same degree of care as if they were such Canadian Lender’s own property being kept at the place at which they are to be held. The Canadian Borrower may, by written notice and consents to the Canadian Administrative Agent, designate persons other than Authorized Officers authorized to give deposit of any such depository note in the Canadian 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 book-based debt clearance system maintained by the Canadian Administrative Agent of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation into, Bankers’ Acceptances shall be deemed to be sufficient authority from Authorized Officers or such designated persons Depository for each of the Canadian Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian 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 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdictionSecurities.
(h) The Canadian Borrower waives presentment for payment and any other defense to the payment of any amounts due to a Canadian Lender in respect of a Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason of the Bankers’ Acceptance being held, at the maturity thereof, by the Canadian Lender in its own right and the Canadian Borrower agrees not to claim any days of grace if the Canadian Lender as holder sues the Canadian Borrower on the Bankers’ Acceptance for payment of the amount payable by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature and the face amount thereof shall be due and payable on the last day of the Interest Period applicable thereto.
(i) Whenever the Canadian Borrower requests a 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 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 Discount Note shall be the same as the Interest Period for Bankers’ Acceptances accepted on the same date of the Borrowing in respect of the same BA Loan;
(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 Applicable Stamping Fee in respect of a Bankers’ Acceptance; and
(iii) the proceeds from a BA Equivalent Loan shall be equal to the BA Discount Proceeds of the Discount Note.
Appears in 1 contract
Samples: Credit Agreement (Ball Corp)
Bankers’ Acceptances. Subject to the terms and conditions of this Agreement, the Canadian Commitments may be utilized, upon the request of any Canadian Borrower, in addition to the Canadian Loans provided for by Section 2.01(b) hereof and the issuance of Canadian Letters of Credit provided for by Section 2.03 hereof, for the acceptance by the Canadian Banks of bankers' acceptances issued by such Canadian Borrower, PROVIDED that in no event shall (i) the aggregate amount of all Bankers' Acceptance Liabilities (expressed as the Equivalent Amount of U.S. Dollars), together with the aggregate Principal Amount of the Canadian Loans and the aggregate amount of all Canadian Letter of Credit Liabilities (with amounts of any Canadian Loans or Canadian Letter of Credit Liabilities outstanding in Canadian Dollars expressed as an Equivalent Amount in U.S. Dollars) exceed the lesser of (A) the aggregate of the Canadian Commitments and (B) the then effective Allocated Canadian Borrowing Base determined pursuant to Section 2.11 hereof 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). Whenever any Canadian Borrower is required to furnish a notice to the Canadian Agent pursuant to the following additional provisions of this Section 2.12, it shall give a copy of such notice to the U.S. Agent. The following additional provisions shall apply to Bankers' Acceptances:
(a) The applicable Canadian Administrative Borrower shall deliver to each Canadian Bank 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 Canadian Agent, promptly following receipt deliver to each Canadian Bank further quantities of a Notice such bills of Borrowing or Notice exchange, so executed, and each Canadian Bank shall hold the bills of Continuation, requesting BA Loans, shall advise each applicable Canadian Lender of the face or principal amount and term of each BA Loan to be accepted (and purchased) or advanced by it. The aggregate face or principal amount of BA Loans to be accepted or advanced by a Canadian Lender shall be determined by the Canadian Administrative Agent by reference to that Canadian 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 Canadian Lenders shall be increased or reduced by the Canadian Administrative Agent exchange in its sole discretion as may be necessary to ensure that the face amount of the Bankers’ Acceptance to be accepted by each applicable Canadian Lender would be C$100,000 or a whole multiple thereof. For greater certainty, the foregoing C$100,000 minimum face amount of Bankers’ Acceptances for each Lender shall not apply to BA Equivalent Loanssafekeeping.
(b) On When the applicable Canadian Borrower wishes to make a borrowing by way of Bankers' Acceptances, such Canadian Borrower shall give the Canadian 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 such Canadian Borrower. The Canadian Borrowers shall jointly and severally indemnify each Canadian Bank against any loss or expense incurred by such Canadian Bank as a result of any failure by the applicable Canadian Borrower to fulfill or honor before the date specified in a Notice of Borrowing or Notice of Continuation on which a BA Loan is to be madeas the Acceptance Date, the Canadian Administrative Agent shall advise applicable conditions set forth in Section 7, if, as a result of such failure the requested Bankers' Acceptance is not made on such date. Unless otherwise agreed among the Canadian Borrower as to Agent and the Canadian Administrative Agent’s determination Banks, the aggregate amount of the BA Discount Rate for the BA Loans all Bankers' Acceptances issued on any Acceptance Date hereunder shall be accepted PRO RATA by all Canadian Banks relative to be purchased their respective Commitment Percentage, rounded, upwards or advanceddownwards, as the case may be, to the nearest C$100,000. Upon receipt of a Bankers' Acceptance Request, the Canadian Agent shall advise each Canadian Bank of the contents thereof.
(c) Unless the applicable Canadian Borrower has notified the Canadian Agent in the Bankers' Acceptance Request that such Canadian 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 Canadian 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 Accepting Lenders and, 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 Canadian Agent, in accordance with Section 2.02 hereof, the Net Proceeds of the purchase of Bankers' Acceptances on such day by such Canadian Bank calculated in accordance with Exhibit F. The Canadian Agent shall transfer to the applicable Canadian Borrower those Net Proceeds of the Bankers' Acceptances and shall notify such Canadian Borrower and each such Canadian Bank 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 relevant Canadian Borrower shall sell pay each Accepting Lender and each Canadian Lender Bank providing a BA Loan a stamping fee with respect to each Bankers' Acceptance and each BA Loan. For each Bankers' Acceptance or BA Loan, the Stamping Fee payable by such Canadian Borrower shall purchase be the Bankers’ Acceptance accepted product obtained by it at multiplying:
(i) the applicable BA Discount Rate. Subject Fee Rate specified in the definition of Applicable Margin in effect from time to clause time; by (ii) the Principal Amount of that Bankers' Acceptance or BA Loan; and prorating 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) below, each Canadian Lender shall provide Before giving value to the Canadian Administrative Agent, Agent for the account of the applicable Canadian Borrower (or in the case of a Borrower Arrangement, before delivering the Bankers' Acceptance to or at the direction of such Canadian Borrower), on the Acceptance Date each Accepting Lender shall, and is hereby authorized by the Canadian Borrowers 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 Borrower Arrangement. Each such Canadian Bank shall promptly send after the Maturity Date thereof, to the relevant Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping Fee payable by the Canadian Borrower with respect to the each original canceled Bankers’ Acceptance.
(d) In the event the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6, the Canadian Administrative Agent shall make arrangements satisfactory to ' Acceptance it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) has accepted and the Canadian Borrower should concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(e) purchased as provided above. Each Canadian Accepting Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ ' Acceptances accepted and purchased by it.
(fe) In order to facilitate On each day during the period commencing with the issuance by a Canadian Borrower of any Bankers’ Acceptances pursuant to this Agreement' Acceptance and until such Bankers' Acceptance Liability shall have been paid by the Canadian Borrowers, the Canadian Borrower hereby authorizes Commitment of each Accepting
(f) The Canadian Borrowers jointly and severally agree to pay on the Maturity Date for each Bankers' Acceptance, to the Canadian Agent for account of each Accepting Lender an amount equal to the Equivalent Amount in U.S. Dollars of the Canadian Lenders, and appoints each of the Canadian Lenders as the Canadian 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 Borrowing or Notice of Continuation and, once so completed, signed and endorsed to accept them as Bankers’ Acceptances under this Agreement and then if applicable, purchase, discount or negotiate ' Acceptance Liability for such Bankers’ Acceptances in accordance with the provisions of this Agreement. Drafts so completed, signed, endorsed and negotiated on behalf of the Canadian Borrower by a Canadian Lender shall bind the Canadian Borrower as fully and effectively as if so performed by an Authorized Officer of the Canadian Borrower. Each draft of a Bankers’ Acceptance completed, signed or endorsed by a Canadian Lender shall mature on the last day of the term thereof. All Bankers’ Acceptances to be accepted by a particular Canadian Lender shall, at the option of such Canadian 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 Canadian Lender shall be held in safekeeping with the same degree of care as if they were such Canadian Lender’s own property being kept at the place at which they are to be held' Acceptance. The Canadian Borrower may, by written notice to the Canadian Administrative Agent, designate persons other than Authorized Officers authorized to give the Canadian 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 Canadian Administrative Agent of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation into, Bankers’ Acceptances shall be deemed to be sufficient authority from Authorized Officers or such designated persons for each of the Canadian Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian 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 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction.
(h) The Canadian Borrower waives Borrowers hereby waive presentment for payment of Bankers' Acceptances by the Accepting Lenders and any other defense to the payment of any amounts due to a Canadian an Accepting Lender in respect of a Bankers’ ' Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason of the such Bankers’ ' Acceptance being held, held at the maturity thereof, by the Canadian Accepting Lender in its own right which accepted it and the Canadian Borrower agrees agree not to claim from such Canadian Banks any days of grace if for the Canadian Lender as holder sues the Canadian Borrower on the payment at maturity of Bankers’ Acceptance for payment of the amount payable by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature and the face amount thereof shall be due and payable on the last day of the Interest Period applicable thereto' Acceptances.
(ig) Whenever In the event any Canadian Borrower fails to notify the Canadian Borrower requests Agent in writing not later than 1:00 p.m. Toronto time on the Business Day prior to any Maturity Date that the Canadian Borrowers intend to pay with their own funds the Bankers' Acceptance Liabilities due on such Maturity Date or fails to make such payment, the Canadian Borrowers shall be deemed, for all purposes to have given the Canadian Agent notice of a borrowing of a Canadian Prime 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 pursuant to Section 4.05 for an amount equal to the Non-Acceptance Lender’s pro rata portion 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 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 Canadian Agent shall so advise the Canadian Borrowers and the Canadian Borrowers shall advise the Canadian Agent on the
(h) If, in the sole judgment of a Canadian Bank, such Canadian Bank 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 Canadian Bank shall give notice to such effect to the Canadian Agent and the Canadian Borrowers 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 Canadian Agent and the Canadian Borrowers) and shall make available to the Canadian 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 LoanLOAN") in the Principal Amount equal to such Canadian Bank's Commitment Percentage of the total amount of credit requested to be extended by way of Bankers' Acceptances. All terms of this Agreement The Stamping Fee for that BA Loan shall be 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 that BA Loan at a 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 applicable Canadian Borrower on the Acceptance Date shall be the same amount as if that Canadian Bank had accepted and purchased its Canadian Bank's Commitment Percentage of the requested Bankers' Acceptances shall apply equally at a discount from the Principal Amount of that Bankers' Acceptance calculated at a discount rate per annum equal to Discount Notes evidencing BA Equivalent Loans with the Bankers' Acceptance Rate for the term of such changes as may Bankers' Acceptances in the context be necessarysame manner that Net Proceeds are calculated but excluding the BA Fee Rate component of that calculation. For greater certainty:
(i) , the term amount to be made available by each such Canadian Bank on any date in respect of a Discount Note 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 Interest Period for amount that such Canadian Bank would have been required to make available to the applicable Canadian
(i) The applicable Canadian Borrower may, if it so notifies the Canadian Agent in the applicable Bankers’ ' Acceptance Request, arrange the sale of any particular issuance of Bankers' Acceptances to be accepted by the Canadian Banks hereunder. To that end, on the Acceptance Date: (i) the applicable Canadian Borrower shall obtain quotations from prospective purchasers regarding the sale of the Bankers' Acceptances to be accepted by the Canadian Banks, and shall, on or before 11:00 a.m. (Toronto time) on such date, provide each Canadian Bank (through the Canadian Agent) with all necessary information required by such Canadian Bank to enable such Canadian Bank 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 such Canadian Bank. In obtaining such quotes, the applicable Canadian Borrower shall offer each Canadian Bank the right to bid on the same date Bankers' Acceptances accepted by it. The Canadian Banks and the Canadian Agent shall not be responsible for any losses occasioned by the failure of any Canadian Borrower to comply with its obligations under this paragraph and shall not be required to purchase any Bankers' Acceptances on such Acceptance Date if the Borrowing in respect of the same BA Loan;
applicable Canadian Borrower has requested a Borrower Arrangement; and (ii) on receipt from the applicable Canadian Borrower of the information referred to in paragraph (i), the Canadian Agent shall promptly notify each Canadian Bank of: (A) the Bankers' Acceptance discount rate to be applicable to such issue; (B) the minimum proceeds to be received by such Canadian Bank on the sale of the Bankers' Acceptances accepted by such Canadian Bank, based upon such Bankers' Acceptance discount rate obtained by such Canadian Borrower for each such Canadian Bank; and (C) the Stamping Fee payable to such Canadian Bank in connection with such issue.
(j) The issuance by an acceptance fee will Accepting Lender of each Bankers' Acceptance shall, in addition to the conditions precedent set forth in Section 7 hereof, be payable subject to the conditions precedent that the applicable Canadian Borrower shall have executed and delivered all Bankers' Acceptance Documents as the Accepting Lender shall have reasonably requested consistent with its then current practices and procedures, PROVIDED that in respect the event of any conflict between any such Bankers' Acceptance Documents and the provisions of this Agreement or any Security Document, the provisions of this Agreement and the Security Documents shall control.
(k) If a Discount Note and Canadian Bank determines in good faith, which determination shall be calculated at final, conclusive and binding upon the same rate Canadian Borrowers, and in notifies the same manner as Canadian Borrowers that, by reason of circumstances affecting the Applicable Stamping Fee in respect of a money market: (i) there is no market for Bankers’ Acceptance' Acceptances; and
or (iiiii) the proceeds from a BA Equivalent Loan shall be equal demand for Bankers' Acceptances is insufficient to allow the BA Discount Proceeds sale or trading of the Discount Note.Bankers' Acceptances created and purchased hereunder; then:
Appears in 1 contract
Samples: Credit Agreement (Forest Oil Corp)
Bankers’ Acceptances. (a) The Canadian Administrative Agent, promptly following receipt of a Notice of Borrowing or Notice of Continuation, requesting BA Loans, shall advise each applicable Canadian Lender of the face or principal amount and term of each BA Loan to be accepted (and purchased) or advanced by it. The aggregate face or principal amount of BA Loans to be accepted or advanced by a Canadian Lender shall be determined by the Canadian Administrative Agent by reference to that Canadian 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 Canadian Lenders shall be increased or reduced by the Canadian Administrative Agent in its sole discretion as may be necessary to ensure that the face amount of the Bankers’ Acceptance to be accepted by each applicable Canadian Lender would be C$100,000 or a whole multiple thereof. For greater certainty, the foregoing C$100,000 requirement for a minimum face amount and a whole multiple of Bankers’ Acceptances for each Lender C$100,000 shall not apply to BA Equivalent Loans.
(b) On the date specified in a Notice of Borrowing or Notice of Continuation on which a BA Loan is to be made, the Canadian Administrative Agent shall advise the Canadian Borrower as to the Canadian 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 Canadian Borrower shall sell issue and each Canadian Lender shall accept and subsequently purchase the Bankers’ Acceptance accepted by it at the applicable BA Discount Rate. Subject to clause (d) below, each Canadian Lender shall provide the Canadian Administrative Agent, for the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping Fee payable by the Canadian Borrower with respect to the Bankers’ Acceptance.
(d) In the event the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6, the Canadian Administrative Agent shall make arrangements satisfactory to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the Canadian Borrower should shall concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(e) Each Canadian Lender may from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances accepted and purchased by it.
(f) In order to facilitate the issuance of Bankers’ Acceptances pursuant to this Agreement, the Canadian Borrower hereby authorizes each of the Canadian Lenders, and appoints each of the Canadian Lenders as the Canadian 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 Borrowing or Notice of Continuation 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, signed, endorsed and negotiated on behalf of the Canadian Borrower by a Canadian Lender shall bind the Canadian Borrower as fully and effectively as if so performed by an Authorized Officer of the Canadian Borrower. Each draft of a Bankers’ Acceptance completed, signed or endorsed by a Canadian Lender shall mature on the last day of the term thereof. All Bankers’ Acceptances to be accepted by a particular Canadian Lender shall, at the option of such Canadian 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 Canadian Lender shall be held in safekeeping with the same degree of care as if they were such Canadian Lender’s own property being kept at the place at which they are to be held. The Canadian Borrower may, by written notice to the Canadian Administrative Agent, designate persons other than Authorized Officers as authorized to give the Canadian 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 provided, however, that receipt by the Canadian Administrative Agent of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation into, Bankers’ Acceptances shall be deemed to be sufficient authority from Authorized Officers or such designated persons for each of the Canadian Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian 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 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction.
(h) The Canadian Borrower waives presentment for payment and any other defense to the payment of any amounts due to a Canadian Lender in respect of a Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason of the Bankers’ Acceptance being held, at the maturity thereof, by the Canadian Lender in its own right and the Canadian Borrower agrees not to claim any days of grace if the Canadian Lender as holder sues the Canadian Borrower on the Bankers’ Acceptance for payment of the amount payable by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature and the face amount thereof shall be due and payable on the last day of the Interest Period applicable thereto.
(i) Whenever the Canadian Borrower requests a 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 BA Loan. All terms of this Agreement applicable to Bankers’ Acceptances and Drafts 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 Interest Period for Bankers’ Acceptances accepted on the same date of the Borrowing in respect of the same BA Loan;
(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 Applicable Stamping Fee in respect of a Bankers’ Acceptance; and
(iii) the proceeds from a BA Equivalent Loan shall be equal to the BA Discount Proceeds of the Discount Note.
Appears in 1 contract
Samples: Credit Agreement (Visant Corp)
Bankers’ Acceptances. (a) The Subject to the terms and conditions hereof, upon giving to the Canadian Administrative Agent, promptly following receipt Agent prior written notice in accordance with Section 2.02 hereof by means of a Notice of Committed Borrowing in substantially the form of Exhibit A-3 hereto, on any Business Day the Canadian Borrower may borrow from the Canadian Lenders up to the amount of the aggregate of the Canadian Commitments by way of the drawing of Banker's Acceptances for purchase by the Canadian Lenders, provided that:
(i) each Banker's Acceptance is denominated in Canadian Dollars and the minimum aggregate amount of each Borrowing by way of Banker's Acceptances shall be Two Million Canadian Dollars (Cdn. $2,000,000) or Notice in integral multiples of Continuation, requesting BA Loans, shall advise One Million Canadian Dollars (Cdn. $1,000,000) in excess of such minimum aggregate amount;
(ii) each applicable Canadian Lender of shall have received a Banker's Acceptance or Banker's Acceptances in the face or aggregate principal amount of such Borrowing from such Canadian Lender in due and term proper form duly completed and executed by the Canadian Borrower and presented for acceptance to such Canadian Lender prior to 1:00 p.m. (Toronto time) on the date of Borrowing, together with such other document or documents as such Canadian Lender may reasonably require (including the execution by the Canadian Borrower of such Canadian Lender's usual form of Banker's Acceptances) and the Acceptance Fee in respect of each BA Loan such Banker's Acceptance shall have been paid to such Canadian Lender at or prior to such time;
(iii) each Banker's Acceptance shall be stated to mature on a Business Day which is thirty (30), sixty (60), ninety (90) or one hundred and eighty (180) days from the date of its acceptance;
(iv) each Banker's Acceptance to be accepted by a Canadian Lender shall be stated to mature on a Business Day on or prior to the Commitment Termination Date of such Canadian Lender;
(and purchasedv) or advanced by it. The no days of grace shall be permitted on any Banker's Acceptance;
(vi) the aggregate face or principal amount of BA Loans the Banker's Acceptances to be accepted or advanced by a Canadian Lender shall be determined by the Canadian Administrative Agent by reference to that the respective Canadian Lender’s applicable pro rata portion Commitments of the issue or advance of BA LoansCanadian Lenders, except that that, if the aggregate face amount of Bankers’ Acceptances to a Banker's Acceptance which would otherwise be accepted by the applicable a Canadian Lenders Lender would not be Cdn. $100,000 or a whole multiple thereof, such face amount shall be increased or reduced by the Canadian Administrative Agent in its sole discretion as may be necessary to ensure that the face amount of the Bankers’ Acceptance to be accepted by each applicable Canadian Lender would be C$Cdn. $100,000 or a the nearest whole multiple thereof. For greater certaintyof that amount, the foregoing C$100,000 minimum face amount of Bankers’ Acceptances for each Lender shall not apply to BA Equivalent Loansas appropriate.
(b) On Payments at Maturity. By no later than 1:00 P.M. (Toronto time) on the maturity date specified in a Notice of Borrowing or Notice of Continuation on which a BA Loan is to be madeeach Banker's Acceptance, the Canadian Administrative Agent Borrower shall advise the Canadian Borrower as pay to the Canadian 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 Canadian Borrower shall sell and each Canadian Lender shall purchase the Bankers’ Acceptance accepted by it at the applicable BA Discount Rate. Subject to clause (d) below, each Canadian Lender shall provide the Canadian Administrative Agent, Agent for the account of this Canadian Lender which accepted such Banker's Acceptance an amount equal to the face value of each Banker's Acceptance accepted by such Canadian Lender maturing on that day (notwithstanding that a Canadian Lender may be the holder thereof at maturity). If for any reason the Canadian Borrower fails to make such payment in respect of any Banker's Acceptance, the Canadian Borrower shall be deemed for all purposes to have received on the maturity date of each such Banker's Acceptance a Canadian Prime Rate Advance in an amount equal to the face maturity value of each such Banker's Acceptance and the Canadian Borrower shall pay interest thereon at the Canadian Prime Rate until repayment thereof in full by the Canadian Borrower, the BA Discount Proceeds less whole notwithstanding the Applicable Stamping Fee payable by the Canadian Borrower with respect to the Bankers’ Acceptance.
(d) In the event the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6, the Canadian Administrative Agent shall make arrangements satisfactory to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to fact that any Banker's Acceptances may be converted (the “Maturing Amount”) and the Canadian Borrower should concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(e) Each Canadian Lender may from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances accepted and purchased by it.
(f) In order to facilitate the issuance of Bankers’ Acceptances pursuant to this Agreement, the Canadian Borrower hereby authorizes each of the Canadian Lenders, and appoints each of the Canadian Lenders as the Canadian 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 Borrowing or Notice of Continuation 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, signed, endorsed and negotiated on behalf of the Canadian Borrower by a Canadian Lender shall bind the Canadian Borrower as fully and effectively as if so performed by an Authorized Officer of the Canadian Borrower. Each draft of a Bankers’ Acceptance completed, signed or endorsed by a Canadian Lender shall mature on the last day of the term thereof. All Bankers’ Acceptances to be accepted by a particular Canadian Lender shall, at the option of such Canadian 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 Canadian Lender shall be held in safekeeping with the same degree of care as if they were such Canadian Lender’s own property being kept at the place at which they are to be held. The Canadian Borrower may, by written notice to the Canadian Administrative Agent, designate persons other than Authorized Officers authorized to give the Canadian 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 Canadian Administrative Agent of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation into, Bankers’ Acceptances shall be deemed to be sufficient authority from Authorized Officers or such designated persons for each of the Canadian Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian 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 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction.
(h) The Canadian Borrower waives presentment for payment and any other defense to the payment of any amounts due to a Canadian Lender in respect of a Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason of the Bankers’ Acceptance being held, at the maturity thereof, by the Canadian Lender in its own right at maturity. The Canadian Borrower acknowledges, agrees and confirms with the Canadian Lenders that the records of the applicable 45 Amended and Restated Credit Agreement (Long Term) Canadian Lender in respect of payment of any Banker's Acceptance by such Canadian Lender shall be binding on the Canadian Borrower agrees not and shall be conclusive evidence (in the absence of manifest error) of a Canadian Advance to claim any days of grace if the Canadian Lender as holder sues the Canadian Borrower on the Bankers’ Acceptance for payment and of the an amount payable owing by the Canadian Borrower thereunderto such Canadian Lender. Each Bankers’ Acceptance The Canadian Borrower further agrees that if an Event of Default shall mature and occur prior to the face amount thereof shall be due and date upon which any one or more Banker's Acceptances are payable on the last day of the Interest Period applicable thereto.
(i) Whenever by a Canadian Lender, thereupon, the Canadian Borrower requests a Loan under this Agreement by way shall provide such Canadian Lender with funds for the full face amount of Bankers’ all such Banker's Acceptances, each Non-notwithstanding the fact that any such Banker's Acceptance may be held by such Canadian Lender shallin its own right at maturity; provided, however, that if for any reason the Canadian Borrower fails to make such payment in lieu respect of accepting a Bankers’ any Banker's Acceptance, make thereupon the Canadian Borrower shall be deemed for all purposes to have received, on the maturity date in respect of such Banker's Acceptance, a BA Equivalent Loan by way of Discount Note Canadian Prime Rate Advance in an amount equal to the Non-face maturity amount of such Banker's Acceptance Lender’s pro rata portion of and the BA Loan. All terms of this Agreement applicable to Bankers’ Acceptances Canadian Borrower 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 Interest Period for Bankers’ Acceptances accepted on the same date of the Borrowing in respect of the same BA Loan;
(ii) an acceptance fee will be payable in respect of a Discount Note and shall be calculated pay interest thereon at the same rate and Canadian Prime Rate until repayment thereof in the same manner as the Applicable Stamping Fee in respect of a Bankers’ Acceptance; and
(iii) the proceeds from a BA Equivalent Loan shall be equal to the BA Discount Proceeds of the Discount Notefull.
Appears in 1 contract
Samples: Credit Agreement (Viad Corp)
Bankers’ Acceptances. (a) The Canadian Administrative Agent, promptly following receipt of a Notice of Borrowing or Notice of Conversion or Continuation, requesting BA Loans, shall advise each applicable Canadian Lender of the face or principal amount and term of each BA Loan to be accepted (and purchased) or advanced by it. The aggregate face or principal amount of BA Loans to be accepted or advanced by a Canadian Lender shall be determined by the Canadian Administrative Agent by reference to that Canadian 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 Canadian Lenders shall be increased or reduced by the Canadian Administrative Agent in its sole discretion as may be necessary to ensure that the face amount of the Bankers’ Acceptance to be accepted by each applicable Canadian Lender would be C$100,000 or a whole multiple thereof. For greater certainty, the foregoing C$100,000 requirement for a minimum face amount and a whole multiple of Bankers’ Acceptances for each Lender C$100,000 shall not apply to BA Equivalent Loans.
(b) On the date specified in a Notice of Borrowing or Notice of Conversion or Continuation on which a BA Loan is to be made, the Canadian Administrative Agent shall advise the Canadian Borrower as to the Canadian 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 Canadian Borrower shall sell issue and each Canadian Lender shall accept and subsequently purchase the Bankers’ Acceptance accepted by it at the applicable BA Discount Rate. Subject to clause (d) below, each Canadian Lender shall provide the Canadian Administrative Agent, for the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping Fee payable by the Canadian Borrower with respect to the Bankers’ Acceptance.
(d) In the event the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6, the Canadian Administrative Agent shall make arrangements satisfactory to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) and the Canadian Borrower should shall concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(e) Each Canadian Lender may from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances accepted and purchased by it.
(f) In order to facilitate the issuance of Bankers’ Acceptances pursuant to this Agreement, the Canadian Borrower hereby authorizes each of the Canadian Lenders, and appoints each of the Canadian Lenders as the Canadian 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 Borrowing or Notice of Conversion or Continuation 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, signed, endorsed and negotiated on behalf of the Canadian Borrower by a Canadian Lender shall bind the Canadian Borrower as fully and effectively as if so performed by an Authorized Officer of the Canadian Borrower. Each draft of a Bankers’ Acceptance completed, signed or endorsed by a Canadian Lender shall mature on the last day of the term thereof. All Bankers’ Acceptances to be accepted by a particular Canadian Lender shall, at the option of such Canadian 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 Canadian Lender shall be held in safekeeping with the same degree of care as if they were such Canadian Lender’s own property being kept at the place at which they are to be held. The Canadian Borrower may, by written notice to the Canadian Administrative Agent, designate persons other than Authorized Officers authorized to give the Canadian 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 provided, however, that receipt by the Canadian Administrative Agent of a Notice of Borrowing or Notice of Conversion or Continuation requesting an advance or continuation into, Bankers’ Acceptances shall be deemed to be sufficient authority from Authorized Officers or such designated persons for each of the Canadian Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Canadian 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 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction.
(h) The Canadian Borrower waives presentment for payment and any other defense to the payment of any amounts due to a Canadian Lender in respect of a Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason of the Bankers’ Acceptance being held, at the maturity thereof, by the Canadian Lender in its own right and the Canadian Borrower agrees not to claim any days of grace if the Canadian Lender as holder sues the Canadian Borrower on the Bankers’ Acceptance for payment of the amount payable by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature and the face amount thereof shall be due and payable on the last day of the Interest Period applicable thereto.
(i) Whenever the Canadian Borrower requests a 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 BA Loan. All terms of this Agreement applicable to Bankers’ Acceptances and Drafts 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 Interest Period for Bankers’ Acceptances accepted on the same date of the Borrowing in respect of the same BA Loan;
(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 Applicable Stamping Fee in respect of a Bankers’ Acceptance; and
(iii) the proceeds from a BA Equivalent Loan shall be equal to the BA Discount Proceeds of the Discount Note.
Appears in 1 contract
Bankers’ Acceptances. (ai) The Canadian Administrative Agent, promptly following receipt of a Notice of Borrowing or Notice of Continuation, Conversion/Continuation requesting BA Loans, shall advise each applicable Supplemental Canadian Dollar Term B Lender of the face or principal amount and term of each BA Loan to be accepted (and purchased) or advanced by it. The aggregate face or principal amount of BA Loans to be accepted or advanced by a Supplemental Canadian Dollar Term B Lender shall be determined by the Canadian Administrative Agent by reference to that such Supplemental Canadian Dollar Term B Lender’s applicable pro rata portion Pro Rata Share of the issue or advance of BA Loans, except that the aggregate face amount of Bankers’ Acceptances to be accepted by the applicable Supplemental Canadian Dollar Term B Lenders shall be increased or reduced by the Canadian Administrative Agent in its sole discretion as may be necessary to ensure that the face amount of the Bankers’ Acceptance to be accepted by each applicable Supplemental Canadian Dollar Term B Lender would be C$100,000 or a whole multiple thereof. For greater certainty, the foregoing C$100,000 requirement for a minimum face amount and a whole multiple of Bankers’ Acceptances for each Lender C$100,000 shall not apply to BA Equivalent Loans.
(bii) On the date specified in a Notice of Borrowing or Notice of Conversion/Continuation on which a BA Loan is to be made, the Canadian Administrative Agent shall advise the Canadian Borrower as to the Canadian Administrative Agent’s determination of the BA Discount Rate for the BA Loans to be purchased or advanced, as the case may be.
(ciii) The Canadian Borrower shall sell issue and each Supplemental Canadian Dollar Term B Lender shall accept and subsequently purchase the Bankers’ Acceptance accepted by it at the applicable BA Discount Rate. Subject to clause (div) below, each Supplemental Canadian Dollar Term B Lender shall provide the Canadian Administrative Agent, for the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping Fee payable by the Canadian Borrower with respect to the Bankers’ Acceptance.
(div) In the event the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Rate Loans into BA Loans in accordance with Section 2.62.2D, the Canadian Administrative Agent shall make arrangements satisfactory to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “"Maturing Amount”") and the Canadian Borrower should shall concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(ev) Each Supplemental Canadian Dollar Term B Lender may from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances accepted and purchased by it.
(fvi) In order to facilitate the issuance of Bankers’ Acceptances pursuant to this Agreement, the Canadian Borrower hereby authorizes each of the Supplemental Canadian Dollar Term B Lenders, and appoints each of the Supplemental Canadian Dollar Term B Lenders as the Canadian 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 bxxx 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 Borrowing or Notice of Conversion/Continuation 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, signed, endorsed and negotiated on behalf of the Canadian Borrower by a Supplemental Canadian Dollar Term B Lender shall bind the Canadian Borrower as fully and effectively as if so performed by an Authorized authorized Officer of the Canadian Borrower. Each draft of a Bankers’ Acceptance completed, signed or endorsed by a Supplemental Canadian Dollar Term B Lender shall mature on the last day of the term thereof. All Bankers’ Acceptances to be accepted by a particular Supplemental Canadian Dollar Term B Lender shall, at the option of such Supplemental Canadian Dollar Term B 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).
(gvii) Any Drafts to be used for Bankers’ Acceptances which are held by a Supplemental Canadian Dollar Term B Lender shall be held in safekeeping with the same degree of care as if they were such Supplemental Canadian Dollar Term B Lender’s own property being kept at the place at which they are to be held. The Canadian Borrower may, by written notice to the Canadian Administrative Agent, designate persons other than Authorized authorized Officers authorized to give the Canadian 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 provided, however, that receipt by the Canadian Administrative Agent of a Notice of Borrowing or Notice of Conversion/Continuation requesting an advance or continuation into, Bankers’ Acceptances shall be deemed to be sufficient authority from Authorized authorized Officers or such designated persons for each of the Supplemental Canadian Dollar Term B Lenders to complete, and issue drafts in accordance with such notice. None of the Canadian Administrative Agent or the Supplemental Canadian Dollar Term B 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 2.14(g2.1F(vii) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction.
(hviii) The Canadian Borrower waives presentment for payment and any other defense to the payment of any amounts due to a Supplemental Canadian Dollar Term B Lender in respect of a Bankers’ Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason of the Bankers’ Acceptance being held, at the maturity thereof, by the Supplemental Canadian Dollar Term B Lender in its own right and the Canadian Borrower agrees not to claim any days of grace if the Supplemental Canadian Dollar Term B Lender as holder sues the Canadian Borrower on the Bankers’ Acceptance for payment of the amount payable by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature and the face amount thereof shall be due and payable on the last day of the Interest Period applicable thereto.
(iix) Whenever the Canadian Borrower requests a Supplemental Canadian Dollar Term B 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 Pro Rata Share of the BA Loan. All terms of this Agreement applicable to Bankers’ Acceptances and Drafts shall apply equally to Discount Notes evidencing BA Equivalent Loans with such changes as may in the context be necessary. For greater certainty:
(ia) the term of a Discount Note shall be the same as the Interest Period for Bankers’ Acceptances accepted on the same date of the Borrowing in respect of the same BA Loan;
(iib) 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 Applicable Stamping Fee in respect of a Bankers’ Acceptance; and
(iiic) the proceeds from a BA Equivalent Loan shall be equal to the BA Discount Proceeds of the Discount Note.
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Bankers’ Acceptances. (a) The Subject to the terms and conditions hereof, upon giving to the Administrative Agent prior written notice in accordance with this Section 2.5, on any Business Day, the Canadian Administrative AgentBorrower may borrow from the Canadian Lenders by way of Acceptances, promptly following receipt of a Notice of Borrowing or Notice of Continuationprovided, requesting BA Loanshowever, shall advise that:
(i) each applicable Canadian Lender shall have received a Bankers' Acceptance or Bankers' Acceptances in the aggregate principal amount of such borrowing from such Canadian Lender in due and proper form duly completed and executed by the Canadian Borrower and presented for acceptance to such Canadian Lender prior to 10:00 a.m. (Toronto time) on the date for such borrowing, together with such other document or documents as such Canadian Lender may reasonably require (including the execution by the Canadian Borrower of such Canadian Lender's usual form of bankers' acceptances) and the Acceptance Fee shall have been paid to such Canadian Lender at or prior to such time;
(ii) each Bankers' Acceptance shall be stated to mature on a Business Day, no later than the Revolving Credit Termination Date, which is 30, 60 or 90 days from the date of its acceptance;
(iii) each Bankers' Acceptance shall have a face amount of not less than CA$100,000 and shall be in form satisfactory to such Canadian Lender;
(iv) each Bankers' Acceptance shall be stated to mature on a Business Day in such a way that no Canadian Lender will be required to incur any costs for the redeployment of funds as a consequence of any repayment required during any period for which such Bankers' Acceptance is outstanding;
(v) no days of grace shall be permitted on any Bankers' Acceptance;
(vi) the aggregate face amount of the face or principal amount and term of each BA Loan Bankers' Acceptances to be accepted (and purchased) or advanced by it. The aggregate face or principal amount of BA Loans to be accepted or advanced by a Canadian Lender shall be determined by the Canadian Administrative Agent by reference to that Canadian Lender’s applicable pro rata portion the respective relevant Revolving Credit Commitments of the issue or advance of BA LoansCanadian Lenders, except that that, if the aggregate face amount of a Bankers’ Acceptances to ' Acceptance which would otherwise be accepted by the applicable a Canadian Lenders Lender would not be CA$100,000 or a whole multiple thereof, such face amount shall be increased or reduced by the Canadian Administrative Agent in its sole discretion to $100,000 or the nearest whole multiple of that amount, as may be necessary appropriate; and
(vii) after giving effect to ensure that the face amount issuance of each Acceptance, (A) the Bankers’ Acceptance aggregate Revolving Credit Outstandings owing to be accepted by each applicable any Canadian Lender would be C$100,000 not exceed such Canadian Lender's Revolving Credit Commitment in effect at such time or a whole multiple thereof. For greater certainty, (B) the foregoing C$100,000 minimum face amount aggregate Revolving Credit Outstandings owing to all of Bankers’ Acceptances for each Lender shall the Lenders would not apply to BA Equivalent Loansexceed the Revolving Credit Commitments in effect at such time.
(b) On the date specified in a Notice of Borrowing or Notice of Continuation on which a BA Loan is to be made, the Canadian Administrative Agent shall advise the Canadian Borrower as to the Canadian 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 Canadian Borrower shall sell acknowledges, agrees and confirms that each Canadian Lender shall purchase the Bankers’ Acceptance accepted by it may at the applicable BA Discount Rate. Subject to clause (d) below, each Canadian Lender shall provide the Canadian Administrative Agent, for the account of the Canadian Borrower, the BA Discount Proceeds less the Applicable Stamping Fee payable by the Canadian Borrower with respect to the Bankers’ Acceptance.
(d) In the event the Canadian Borrower requests a continuation of BA Loans for a further Interest Period, or requests conversion from Canadian Prime Loans into BA Loans in accordance with Section 2.6, the Canadian Administrative Agent shall make arrangements satisfactory to it to ensure the BA Discount Proceeds from the replacement BA Loans are applied to repay the face amount of the maturing BA Loans or the principal amount of such loans to be converted (the “Maturing Amount”) any time and the Canadian Borrower should concurrently pay to the Canadian Administrative Agent any positive difference between the Maturing Amount and such BA Discount Proceeds.
(e) Each Canadian Lender may from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances Acceptance accepted and purchased by it hereunder, that the records of such Canadian Lender in respect of payment of any Bankers' Acceptance by such Canadian Lender shall be binding on the Canadian Borrower and shall be conclusive evidence (in the absence of manifest error) of a BA Rate Loan to the Canadian Borrower and of an amount owing by the Borrowing Subsidiary to such Lender.
(c) In the event a Canadian Lender is unable or, in its sole discretion, shall have determined that by reason of circumstances arising after the Effective Date and affecting the market for Bankers' Acceptances, that it is unwilling, to accept Bankers' Acceptances, such Canadian Lender shall have the right at the time of accepting drafts to require the Canadian Borrower to accept a Revolving Loan from such Canadian Lender in lieu of the issue and acceptance of a Bankers' Acceptance requested by the Canadian Borrower (a "BA Equivalent Loan") to be accepted so that there shall be outstanding while the Bankers' Acceptances are outstanding BA Equivalent Loans from such Canadian Lender as contemplated herein. The principal amount of each BA Equivalent Loan shall be that amount which, when added to the amount of interest (calculated at the applicable Discount Rate) which will accrue during the applicable BA Interest Period, equals, at maturity, to the face amount of the drafts which would have been accepted by such Canadian Lender had it accepted Bankers' Acceptances. On the relevant date of the borrowing the Canadian Borrower shall pay to the Administrative Agent a fee equal to the Acceptance Fee which would have been payable to such Canadian Lender if it were a Canadian Lender accepting drafts having a term to maturity equal to the applicable BA Interest Period and an aggregate face amount equal to the sum of the principal amount of the BA Equivalent Loan and the interest payable thereon by the Canadian Borrower for the applicable BA Interest Period. The provisions of this Agreement dealing with Bankers' Acceptances shall apply, mutatis mutandis, to BA Equivalent Loans.
(d) Each Bankers' Acceptance issued pursuant to this Agreement shall be purchased by the Canadian Lender accepting such Bankers' Acceptance for the Discounted Proceeds thereof. Concurrent with the acceptance of each Bankers' Acceptance, such Canadian Lender shall make available to the Administrative Agent the Discounted Proceeds thereof for disbursement to the Canadian Borrower in accordance with the terms hereof. On any date on which both new Bankers' Acceptances are being purchased and existing Bankers' Acceptances are maturing, the Canadian Borrower hereby authorizes the applicable Canadian Lender and the Administrative Agent to net all amounts payable on such date by such Canadian Lender to the Administrative Agent for the account of the Canadian Borrower, against all amounts payable on such date by the Canadian Borrower to such Canadian Lender in accordance with the Administrative Agent's calculations. In each case, upon receipt of such Discounted Proceeds from such Lender and upon fulfillment of the applicable conditions set forth herein, the Administrative Agent shall make such funds available to the Canadian Borrower in accordance with this Agreement. Upon each issue of Bankers' Acceptances as a result of the conversion of outstanding Base Rate Loans into Bankers' Acceptances, the Canadian Borrower shall, concurrently with the conversion, pay in advance to the Administrative Agent on behalf of the Canadian Lenders, the amount by which the face value of such Bankers' Acceptances exceeds the Discounted Proceeds of such Bankers' Acceptances, to be applied against the principal amount of the Base Rate Loans being so converted. The Canadian Borrower shall at the same time pay to the Administrative Agent the applicable Acceptance Fee.
(e) To enable the Lenders to make Canadian Revolving Credit Outstandings in the manner specified in this Section 2.5, the Canadian Borrower shall, in accordance with the request of each Canadian Lender either (i) provide a power of attorney to complete, sign, endorse and issue Bankers' Acceptances, in such form as such Canadian Lender may require; or (ii) supply such Canadian Lender with such number of drafts as such Canadian Lender may reasonably request, duly endorsed and executed on behalf of the Canadian Borrower. Each Canadian Lender shall exercise such care in the custody and safekeeping of drafts as it would exercise in the custody and safekeeping of similar property owned by it. Each Canadian Lender will, upon request by the Canadian Borrower, promptly advise such Subsidiary of the number and designations, if any, of the uncompleted drafts then held by it.
(f) In order The Canadian Borrower agrees to facilitate pay to each Canadian Lender on the issuance maturity date of each Bankers’ ' Acceptance issued by it, an amount equal to the face amount of all Bankers' Acceptances pursuant to this Agreementaccepted by such Canadian Lender maturing on that day (notwithstanding that a Canadian Lender may be the holder thereof at maturity) and all reasonable expenses paid or incurred by such Canadian Lender, relative thereto. Unless the Canadian Borrower hereby authorizes each of shall have made such payment to the Canadian Lenders, on such day and appoints upon each such maturity date of each Bankers' Acceptance, the Administrative Agent shall be deemed to have disbursed to the Canadian Borrower, and the Canadian Borrower shall be deemed to have elected to satisfy its reimbursement and payment obligation by, a Revolving Credit Borrowing from the Canadian Lenders in Canadian Dollars bearing interest at the Base Rate for the account of the Canadian Lenders as in an amount equal to the amount so paid by such Canadian Borrower’s attorneyLender, in the face value of such Bankers' Acceptance then maturing. Such Revolving Credit Borrowing shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Loan set forth in Section 3.2 and, to completethe extent of the Revolving Credit Borrowing so disbursed, sign the reimbursement 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 Borrowing or Notice of Continuation 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, signed, endorsed and negotiated on behalf payment obligation of the Canadian Borrower under this Section 2.5(f) shall be deemed satisfied; provided, however, that nothing in this Section 2.5 shall be deemed to constitute a waiver of any Default or Event of Default caused by a Canadian Lender shall bind the Canadian Borrower as fully and effectively as if so performed by an Authorized Officer of the Canadian Borrower. Each draft of a Bankers’ Acceptance completed, signed or endorsed by a Canadian Lender shall mature on the last day of the term thereof. All Bankers’ Acceptances to be accepted by a particular Canadian Lender shall, at the option of such Canadian Lender, be issued in the form of depository bills made payable originally to and deposited with The Depository for Securities Limited pursuant failure to the Depository Bills and Notes Act (Canada)conditions for disbursement or otherwise.
(g) Any Drafts to be used for Bankers’ Acceptances which are held by a The reimbursement and other payment obligations of the Canadian Lender Borrower under this Section 2.5 shall be held absolute, unconditional and irrevocable and shall remain in safekeeping with full force and effect until all obligations of the same degree Borrowers to the Lenders hereunder shall have been satisfied, and such obligations of care as if they were such Canadian Lender’s own property being kept at the place at which they are to be held. The Canadian Borrower mayshall not be affected, by written modified or impaired upon the happening of any event, including any of the following, whether or not with notice to, or the consent of, any Borrower:
(i) Any lack of validity or enforceability of any Acceptance or to any transaction related in any way thereto (such Acceptance and any documents evidencing such transaction, the Canadian "BA Documents");
(ii) Any amendment, modification, waiver, consent, or any substitution, exchange or release of or failure to perfect any interest in collateral or security, with respect to any of the BA Documents;
(iii) The existence of any claim, setoff, defense or other right which the Company or any of its Subsidiaries may have at any time against any beneficiary or any transferee of any Acceptance (or any Persons or entities for whom any such beneficiary, transferee or holder may be acting), the Administrative Agent, designate persons any Canadian Lender or any other than Authorized Officers authorized to give Person or entity, whether in connection with any of the Canadian Administrative Agent instructions regarding BA Documents, the manner in which Drafts are transactions contemplated herein or therein or any unrelated transactions;
(iv) Any draft or other statement or document presented under any Acceptance proving to be completed and forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(v) Any failure, omission, delay or lack on the times at which they are to be issued; provided however that receipt by the Canadian Administrative Agent of a Notice of Borrowing or Notice of Continuation requesting an advance or continuation into, Bankers’ Acceptances shall be deemed to be sufficient authority from Authorized Officers or such designated persons for each part of the Administrative Agent, any Canadian Lenders Lender or any party to complete, and issue drafts in accordance with such notice. None any of the BA Documents to enforce, assert or exercise any right, power or remedy conferred upon the Administrative Agent, any Canadian Administrative Agent Lender or the Canadian Lenders nor any such party under this Agreement or any of their respective directorsthe BA Documents, officersor any other acts or omissions on the part of the Administrative Agent, employees any Canadian Lender or representatives shall be liable for any action taken or omitted to be taken by any of them under this Section 2.14(g) except for their own respective gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction.such party;
(hvi) The Canadian Borrower waives Any defense based on the lack of presentment for payment and any other defense to the payment of any amounts due to a Canadian Lender in respect of a Bankers’ any Acceptance accepted and purchased by it pursuant to this Agreement which might exist solely by reason of the Bankers’ such Acceptance being held, at the maturity thereof, by the such Canadian Lender in its own right and the Canadian Borrower agrees not to claim any days of grace if the Canadian Lender as holder sues the Canadian Borrower on the Bankers’ Acceptance for payment of the amount payable by the Canadian Borrower thereunder. Each Bankers’ Acceptance shall mature and the face amount thereof shall be due and payable on the last day of the Interest Period applicable thereto.
(i) Whenever the Canadian Borrower requests a 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 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 Discount Note shall be the same as the Interest Period for Bankers’ Acceptances accepted on the same date of the Borrowing in respect of the same BA Loan;
(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 Applicable Stamping Fee in respect of a Bankers’ Acceptanceright; and
(iiivii) Any other event or circumstance that would, in the proceeds absence of this clause, result in the release or discharge by operation of law or otherwise of the Company from a BA Equivalent Loan the performance or observance of any obligation, covenant or agreement contained in this Section 2.5.
(h) No setoff, counterclaim, reduction or diminution of any obligation or any defense of any kind or nature which any Borrower has or may have against the beneficiary or holder of any Acceptance shall be equal available hereunder to any Borrower against the BA Discount Proceeds of the Discount NoteAdministrative Agent or any Canadian Lender.
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