Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each Canadian Borrower may request a Canadian Revolving Borrowing by presenting drafts for acceptance and purchase as B/As by the Canadian Revolving Lenders. (b) To facilitate B/A Borrowings, each Canadian Borrower hereby appoints each Canadian Revolving 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 Lender, blank forms of B/As in the form requested by such Lender. In this respect, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Canadian Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender shall bind such Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Canadian Borrower. Each Canadian Revolving Lender is hereby authorized 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 B/As required to be accepted and purchased by such 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 Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder and (iv) canceled at their respective maturities. Each Canadian Revolving 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 that apply to such Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either Canadian Borrower, a Canadian Revolving Lender shall cancel all forms of B/A that have been pre-signed or pre-endorsed on behalf of such Canadian Borrower and that are held by such Lender and are not required to be issued in accordance with such Canadian Borrower’s irrevocable notice. (c) Drafts of a 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 Canadian Revolving Lender or applicable 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 applicable Canadian Borrower. (d) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 by way of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by a Canadian Revolving Lender shall be a whole multiple of C $100,000, and such face amount shall be in the Canadian Revolving Lenders’ pro rata portions of such Canadian Revolving Borrowing; provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $100,000. (e) Upon acceptance of a B/A by a Canadian Revolving Lender, such Lender shall purchase, or arrange the purchase of, each B/A from the applicable Canadian Borrower at the Discount Rate for such Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e) in respect of each B/A accepted by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(e). (f) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it. (g) If a Canadian Revolving Lender notifies the Canadian Administrative Agent in writing that it is unable or unwilling to accept Bankers’ Acceptances, such Lender will, instead of accepting and purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period (a “B/A Equivalent Note”), in the form of Exhibit K, issued by such Canadian Borrower in the amount and for the same term as the draft that such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect of such B/A Equivalent Note. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(g). (h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before the maturity date of such B/As, the applicable Canadian Borrower shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on the maturity date of such B/As. If such Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face amount of such B/A as provided in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such Canadian Borrower to make such payment. (i) Each Canadian Borrower waives presentment for payment and any other defense, in respect of a B/A accepted and purchased by it pursuant to this Agreement, that might exist solely by reason of such B/A being held, at the maturity thereof, by such Lender in its own right and each Canadian Borrower agrees not to claim any days of grace if such Lender as holder sues such Canadian Borrower on the B/A for payment of the amount payable by such Canadian Borrower thereunder. On the specified maturity date of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and after such payment, such 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. (j) If a Canadian Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant under Section 9.04(f), then in respect of any B/A Borrowing, a portion thereof may, at the option of such Lender, be by way of Bankers’ Acceptance accepted by such participant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor of such participant for delivery to such participant.
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Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each Canadian Borrower SSC Canada may request a Revolving (Canadian) Credit Borrowing denominated in Canadian Revolving Borrowing Dollars by presenting drafts for acceptance and purchase as B/As by the Canadian Revolving (Canadian) Lenders.
(b) To facilitate No Contract Period with respect to a B/A Borrowingsto be accepted and, each if applicable, purchased as a Revolving (Canadian) Loan shall extend beyond the Revolving Credit Maturity Date. All B/As and B/A Loans shall be denominated in Canadian Borrower Dollars.
(c) To facilitate availment of B/A Loans, SSC Canada hereby appoints each Canadian Revolving (Canadian) Lender as its attorney to sign and endorse on its behalfbehalf (in accordance with a notice of Borrowing relating to a B/A Loan pursuant to Section 2.03 or 2.10), in handwriting or by facsimile or mechanical signature as and when deemed necessary by such Revolving (Canadian) Lender, blank forms of B/As in the form requested by such Revolving (Canadian) Lender. In this respect, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Canadian Borrower SSC Canada recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Revolving (Canadian) Lender on behalf of SSC Canada shall bind such Canadian Borrower SSC Canada as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Canadian BorrowerSSC Canada. Each Canadian Revolving (Canadian) Lender is hereby authorized (in accordance with a notice of Borrowing relating to a B/A Loan) to issue such B/As endorsed in blank in such face amounts as may be determined by such Revolving (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 Revolving (Canadian) Lender. No Canadian Revolving (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 for the gross negligence or willful misconduct of such Revolving (Canadian) Lender or its officers, employees, agents or representatives. Each Canadian Revolving (Canadian) Lender shall maintain a record record, which shall be made available to SSC Canada upon its request, with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder hereunder, and (iv) canceled at their respective maturities. Each Canadian Revolving 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 that apply to such Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either Canadian BorrowerSSC Canada, a Canadian Revolving (Canadian) Lender shall cancel all forms of B/A that As which have been pre-signed or pre-endorsed on behalf of such Canadian Borrower SSC Canada and that are held by such Revolving (Canadian) Lender and are not required to be issued in accordance with such Canadian BorrowerSSC Canada’s irrevocable notice. Alternatively, SSC Canada agrees that, at the request of the Canadian Administrative Agent, SSC Canada shall deliver to the 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.
(cd) Drafts of a Canadian Borrower SSC Canada to be accepted as B/As hereunder shall be signed as set forth in this Section 2.22. Notwithstanding that any person Person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian Revolving (Canadian) Lender or applicable Canadian Borrower SSC Canada 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 applicable Canadian BorrowerSSC Canada.
(de) Promptly following the receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 borrowing specifying a Revolving (Canadian) Credit Borrowing by way of B/AsA, the Canadian Administrative Agent shall so advise the Canadian Revolving (Canadian) Lenders and shall advise each Canadian Revolving (Canadian) Lender of the aggregate face amount of the B/As A to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving (Canadian) Lenders). The In the case of Revolving (Canadian) Loans comprised of B/A Loans, the aggregate face amount of the B/As A to be accepted by a Canadian Revolving (Canadian) Lender shall be in a minimum aggregate amount of Cdn.$100,000 and shall be a whole multiple of C $100,000Cdn.$100,000, and such face amount shall be in the Canadian Revolving (Canadian) Lenders’ pro rata portions of such Canadian Revolving (Canadian) Borrowing; , provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Revolving (Canadian) Lender’s portion of such B/A Borrowing Loan to the nearest C $100,000Cdn.$100,000 without reducing the aggregate Revolving (Canadian) Credit Commitments.
(ef) Upon SSC Canada may specify in a notice of borrowing pursuant to Section 2.03 or 2.10 that it desires that any B/A requested by such notice of borrowing be purchased by the Revolving (Canadian) Lenders, in which case the Revolving (Canadian) Lenders shall, upon acceptance of a B/A by a Canadian Revolving (Canadian) Lender, such Lender shall purchase, or arrange the purchase of, each B/A from the applicable Canadian Borrower SSC Canada at the Discount Rate for such Revolving (Canadian) Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian BorrowerSSC Canada. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such Canadian Borrower SSC Canada to a Canadian Revolving (Canadian) Lender under this Section 2.22(e2.06(d) in respect of each B/A accepted by such Revolving (Canadian) Lender shall be set off against and deducted from the Discount Proceeds payable by such Revolving (Canadian) Lender under this Section 2.22(e)2.22.
(fg) Each Canadian Revolving (Canadian) Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(gh) If a Canadian Revolving (Canadian) Lender is not a chartered bank under the Bank Act (Canada) or if a Revolving (Canadian) Lender notifies the Canadian Administrative Agent in writing that it is otherwise unable or unwilling to accept Bankers’ Acceptances, such Revolving (Canadian) Lender will, instead of accepting and purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period make an advance (a “B/A Equivalent NoteLoan”), in the form of Exhibit K, issued by such Canadian Borrower ) to SSC Canada in the amount and for the same term as the draft that such Revolving (Canadian) Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Revolving (Canadian) Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect Discount Proceeds of such B/A Equivalent NoteLoan for the account of SSC Canada. The Acceptance Fee payable by Each such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note Loan will bear interest at the same rate that would result if such Revolving (Canadian) Lender had accepted (and been paid an Acceptance Fee) and purchased by such Lender shall be set off against (on a discounted basis at the Discount Proceeds payable by Rate) a Bankers’ Acceptance for the relevant Contract Period (it being the intention of the parties that each such Lender under this Section 2.22(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before Equivalent Loan shall have the maturity date of same economic consequences for the Revolving (Canadian) Lenders and SSC Canada as the Bankers’ Acceptance which such B/As, the applicable Canadian Borrower A Equivalent Loan replaces). All such interest shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth be paid in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover advance on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on A Equivalent Loan is made, and will be deducted from the maturity date of such B/As. If such Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face principal amount of such B/A as provided Equivalent Loan in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to same manner in which the failure Discount Proceeds of such Canadian Borrower to make such paymenta Bankers’ Acceptance would be deducted from the face amount of the Bankers’ Acceptance.
(i) Each Canadian Borrower SSC Canada waives presentment for payment and any other defense, defense to payment of any amounts due to a Revolving (Canadian) Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Revolving (Canadian) Lender in its own right right, and each Canadian Borrower SSC Canada agrees not to claim any days of grace if such Lender Revolving (Canadian) Lender, as holder holder, claims payment from or sues such Canadian Borrower SSC Canada on the B/A for payment of the amount payable by such Canadian Borrower SSC Canada thereunder. On the specified maturity date last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, SSC Canada shall pay the applicable Canadian Borrower shall pay, through the Canadian Administrative Agent, the Canadian Revolving (Canadian) Lender that has accepted and purchased such a B/A or advanced a B/A Equivalent Loan the full face amount of such B/A and or B/A Equivalent Loan, as the case may be, and, after such payment, such Canadian Borrower SSC Canada shall have no further liability in respect of such B/A and such Revolving (Canadian) Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A.
(j) If a Canadian Except as required by any Revolving (Canadian) Lender grants a participation in a portion upon the occurrence of its rights under this Agreement an Event of Default, no B/A Loan may be repaid by SSC Canada prior to a participant under Section 9.04(f)the expiry date of the Contract Period applicable to such B/A Loan; provided, then in respect of however, that any B/A Borrowing, a portion thereof may, at Loan may be defeased as provided in the option of such Lender, be by way of Bankers’ Acceptance accepted by such participant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor of such participant for delivery proviso to such participantSection 2.12(a).
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Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each the Canadian Borrower may request a Canadian C$ Revolving Credit Borrowing by presenting drafts for acceptance and purchase as B/As by the Canadian C$ Revolving Credit Lenders.
(b) To facilitate availment of B/A Borrowings, each the Canadian Borrower hereby appoints each Canadian C$ Revolving Credit 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 Lender, blank forms of B/As in the form requested by such Lender. In this respect, it is each Canadian C$ Revolving Credit Lender’s 's responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each The Canadian Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian C$ Revolving Credit Lender shall bind such the Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such the Canadian Borrower. Each Canadian C$ Revolving Credit Lender is hereby authorized 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 B/As required to be accepted and purchased by such Lender. No Canadian C$ Revolving Credit Lender or any Affiliate thereof 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 wilful misconduct of such Lender or Affiliate, as applicable, or its officers, employees, agents or representatives. Each Canadian C$ Revolving Credit Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder and (iv) canceled at their respective maturities. Each Canadian C$ Revolving Credit 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 that which apply to such Lender. Each Canadian C$ Revolving Credit Lender agrees to provide a copy of such records to either the Canadian Borrower at the applicable Canadian Borrower’s 's expense upon request. On request by or on behalf of either the Canadian Borrower, a Canadian C$ Revolving Credit Lender shall cancel all forms of B/A that which have been pre-signed or pre-endorsed on behalf of such the Canadian Borrower and that which are held by such Lender and are not required to be issued in accordance with such the Canadian Borrower’s 's irrevocable notice.. 48 43
(c) Drafts of a the Canadian Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.222.25. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian C$ Revolving Credit Lender or applicable 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 applicable Canadian Borrower.
(d) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 2.24 by way of B/As, the Canadian Administrative Agent shall so advise the Canadian C$ Revolving Credit Lenders and shall advise each Canadian C$ Revolving Credit Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian C$ Revolving Credit Lenders). The aggregate face amount of the B/As to be accepted by a Canadian C$ Revolving Credit Lender shall be a whole multiple of C $C$100,000, and such face amount shall be in the Canadian C$ Revolving Credit Lenders’ ' pro rata portions of such Canadian C$ Revolving Credit Borrowing; , provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian C$ Revolving Credit Lender’s 's portion of such B/A Borrowing to the nearest C $C$100,000.
(e) Upon acceptance of a B/A by a Canadian C$ Revolving Credit Lender, such Lender shall purchase, or arrange the purchase of, each such B/A from the applicable Canadian Borrower at the Discount Rate for such Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such the Canadian Borrower to a Canadian C$ Revolving Credit Lender under this Section 2.22(e) 2.24 in respect of each B/A accepted by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(e2.25(e).
(f) Each Canadian C$ Revolving Credit Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(g) If a Canadian C$ Revolving Credit Lender is not a chartered bank under the Bank Act (Canada) or if a C$ Revolving Credit Lender notifies the Canadian Administrative Agent in writing that it is otherwise unable or unwilling to accept Bankers’ AcceptancesB/As, such Lender will, instead of accepting and purchasing Bankers’ AcceptancesB/As, purchase from the applicable Canadian Borrower a non-interest bearing note that does not bear interest during the Contract Period denominated in C$ (a “"B/A Equivalent Note”"), in the form of Exhibit KG-4, issued by such the Canadian Borrower in the amount and for the same term as the draft that which such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances B/As are discounted pursuant to this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian C$ Revolving Credit Lender that which purchased from such the Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect of such B/A Equivalent Note. The Acceptance Fee payable by such the Canadian Borrower to a Canadian C$ Revolving Credit Lender under this Section 2.22(g2.25(g) in respect of each B/A Equivalent Note purchased by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(g2.25(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before the maturity date of such B/As, the applicable Canadian Borrower shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s 's address set forth in Section 9.01 10.2 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such the Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such the Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf for the account of the Canadian C$ Revolving Credit Lenders of an amount equal to the aggregate face amount of such B/As on the maturity date of such B/As. If such the Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, shall be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan Borrowing in an aggregate principal amount equal to the aggregate face amount amounts of such B/A as provided in Section 2.07 As and such the Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian C$ Revolving Credit Lender due to the failure of such the Canadian Borrower to make such payment. No B/A may be rolled over when any Default 49 44 or Event of Default has occurred and is continuing and the Administrative Agent has or the Majority C$ Revolving Credit Facility Lenders have determined in its or their sole discretion that such conversion is not appropriate.
(i) Each The Canadian Borrower waives presentment for payment and any other defense, defense to payment of any amounts due to a C$ Revolving Credit Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Lender in its own right and each the Canadian Borrower agrees not to claim any days of grace if such Lender as holder sues such the Canadian Borrower on the B/A for payment of the amount payable by such the Canadian Borrower thereunder. On the specified maturity date of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through the Canadian Administrative Agent, the Canadian C$ Revolving Credit Lender that has accepted and purchased such B/A the full face amount of such B/A and after such payment, such the 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.
(j) If a Canadian C$ Revolving Credit Lender grants a participation in a portion of its rights under this Agreement to a participant under Section 9.04(f)10.6, then in respect of any B/A Borrowing, a portion thereof may, at the option of such Lender, be by way of Bankers’ Acceptance B/A accepted by such participant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian C$ Revolving Credit Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking B/A indemnity in favor of such participant for delivery to such participant.
(k) Notwithstanding anything herein to the contrary, no B/A may be prepaid prior to the maturity date thereof, except as provided in Section 8.
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Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each the Canadian Borrower may request a Multicurrency Revolving Credit Borrowing denominated in Canadian Revolving Borrowing Dollars by presenting drafts for acceptance and purchase as B/As by the Canadian Multicurrency Revolving Credit Lenders.
(b) To facilitate No Contract Period with respect to a B/A Borrowingsto be accepted and, each if applicable, purchased as a Multicurrency Revolving Loan shall extend beyond the Revolving Credit Maturity Date. All B/As and B/A Loans shall be denominated in Canadian Dollars.
(c) To facilitate availment of B/A Loans, the Canadian Borrower hereby appoints each Canadian Multicurrency Revolving Credit Lender as its attorney to sign and endorse on its behalfbehalf (in accordance with a Borrowing Request relating to a B/A Loan pursuant to Section 2.03 or 2.10), in handwriting or by facsimile or mechanical signature as and when deemed necessary by such Multicurrency Revolving Credit Lender, blank forms of B/As in the form requested by such Multicurrency Revolving Credit Lender. In this respect, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each The Canadian Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Multicurrency Revolving Credit Lender on behalf of the Canadian Revolving Lender Borrower shall bind such the Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such the Canadian Borrower. Each Canadian Multicurrency Revolving Credit Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Loan) to issue such B/As endorsed in blank in such face amounts as may be determined by such Multicurrency Revolving Credit Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by such Multicurrency Revolving Credit Lender. No Canadian Multicurrency 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 for the gross negligence or willful wilful misconduct of such Multicurrency Revolving Credit Lender or its officers, employees, agents or representatives. Each Canadian Multicurrency Revolving Credit Lender shall maintain a record record, which shall be made available to the Canadian Borrower upon its request, with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder and (iv) canceled at their respective maturities. Each Canadian Revolving 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 that apply to such Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either the Canadian Borrower, a Canadian Multicurrency Revolving Credit Lender shall cancel all forms of B/A that As which have been pre-signed or pre-endorsed on behalf of such the Canadian Borrower and that are held by such Multicurrency Revolving Credit Lender and are not required to be issued in accordance with such the Canadian Borrower’s irrevocable notice. Alternatively, the Canadian Borrower agrees that, at the request of the Administrative Agent, the Canadian Borrower shall deliver to the Administrative Agent a “depository note” which complies with the requirements of the Depository Bills and Notes Act (Canada), and consents to the deposit of any such depository note in the book-based debt clearance system maintained by the Canadian Depository for Securities.
(cd) Drafts of a the Canadian Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.222.24. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian Multicurrency Revolving Credit Lender or applicable 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 applicable Canadian Borrower.
(de) Promptly following the receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 specifying a Multicurrency Revolving Credit Borrowing by way of B/AsA, the Canadian Administrative Agent shall so advise the Canadian Multicurrency Revolving Credit Lenders and shall advise each Canadian Multicurrency Revolving Credit Lender of the aggregate face amount of the B/As A to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Multicurrency Revolving Credit Lenders). The In the case of Multicurrency Revolving Loans comprised of B/A Loans, the aggregate face amount of the B/As A to be accepted by a Canadian Multicurrency Revolving Credit Lender shall be in a minimum aggregate amount of C$100,000 and shall be a whole multiple of C $C$100,000, and such face amount shall be in the Canadian Multicurrency Revolving Credit Lenders’ pro rata portions of such Canadian Multicurrency Revolving Credit Borrowing; , provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Multicurrency Revolving Credit Lender’s portion of such B/A Borrowing Loan to the nearest C $100,000C$100,000 without reducing the aggregate Multicurrency Revolving Credit Commitments.
(ef) Upon The Canadian Borrower may specify in a Borrowing Request pursuant to Section 2.03 or 2.10 that it desires that any B/A requested by such Borrowing Request be purchased by the Multicurrency Revolving Credit Lenders, in which case the Multicurrency Revolving Credit Lenders shall, upon acceptance of a B/A by a Canadian Multicurrency Revolving Credit Lender, such Lender shall purchase, or arrange the purchase of, each B/A from the applicable Canadian Borrower at the Discount Rate for such Multicurrency Revolving Credit Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such the Canadian Borrower to a Canadian Multicurrency Revolving Credit Lender under this Section 2.22(e2.06(e) in respect of each B/A accepted by such Multicurrency Revolving Credit Lender shall be set off against and deducted from the Discount Proceeds payable by such Multicurrency Revolving Credit Lender under this Section 2.22(e)2.24.
(fg) Each Canadian Multicurrency Revolving Credit Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(gh) If a Canadian Multicurrency Revolving Credit Lender is not a chartered bank under the Bank Act (Canada) or if a Multicurrency Revolving Credit Lender notifies the Canadian Administrative Agent in writing that it is otherwise unable or unwilling to accept Bankers’ Acceptances, such Multicurrency Revolving Credit Lender will, instead of accepting and purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period make an advance (a “B/A Equivalent NoteLoan”), in ) to the form of Exhibit K, issued by such Canadian Borrower in the amount and for the same term as the draft that such Multicurrency Revolving Credit Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Multicurrency Revolving Credit Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect Discount Proceeds of such B/A Equivalent NoteLoan for the account of the Canadian Borrower. The Acceptance Fee payable by Each such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note Loan will bear interest at the same rate that would result if such Multicurrency Revolving Credit Lender had accepted (and been paid an Acceptance Fee) and purchased by such Lender shall be set off against (on a discounted basis at the Discount Proceeds payable by Rate) a Bankers’ Acceptance for the relevant Contract Period (it being the intention of the parties that each such Lender under this Section 2.22(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before Equivalent Loan shall have the maturity date of same economic consequences for the Multicurrency Revolving Credit Lenders and the Canadian Borrower as the Bankers’ Acceptance which such B/As, the applicable Canadian Borrower A Equivalent Loan replaces). All such interest shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth be paid in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover advance on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on A Equivalent Loan is made, and will be deducted from the maturity date of such B/As. If such Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face principal amount of such B/A as provided Equivalent Loan in Section 2.07 the same manner in which the deduction based on the Discount Rate and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to applicable Acceptance Fee of a Bankers’ Acceptance would be deducted from the failure face amount of such Canadian Borrower to make such paymentthe Bankers’ Acceptance.
(i) Each The Canadian Borrower waives presentment for payment and any other defense, defense to payment of any amounts due to a Multicurrency Revolving Credit Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Multicurrency Revolving Credit Lender in its own right right, and each the Canadian Borrower agrees not to claim any days of grace if such Lender Multicurrency Revolving Credit Lender, as holder holder, claims payment from or sues such the Canadian Borrower on the B/A for payment of the amount payable by such the Canadian Borrower thereunder. On the specified maturity date last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through pay the Canadian Administrative Agent, the Canadian Multicurrency Revolving Credit Lender that has accepted and purchased such a B/A or advanced a B/A Equivalent Loan the full face amount of such B/A and or B/A Equivalent Loan, as the case may be, and, after such payment, such the Canadian Borrower shall have no further liability in respect of such B/A and such Multicurrency Revolving Credit Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A.
(j) If a Except as required by any Multicurrency Revolving Credit Lender upon the occurrence of an Event of Default, no B/A Loan may be repaid by the Canadian Revolving Lender grants a participation in a portion Borrower prior to the expiry date of its rights under this Agreement the Contract Period applicable to a participant under Section 9.04(f)such B/A Loan; provided, then in respect of however, that any B/A Borrowing, a portion thereof may, at the option of such Lender, Loan may be by way of Bankers’ Acceptance accepted by such participant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking defeased as provided in favor of such participant for delivery to such participantSection 2.12(a).
Appears in 1 contract
Samples: Credit Agreement (Cbre Group, Inc.)
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each the Canadian Borrower may request a Canadian Revolving Borrowing by presenting drafts for acceptance and purchase as B/As by the Canadian Revolving Lenders.
(b) No Contract Period with respect to a B/A to be accepted and purchased under the Canadian Revolving Credit and no Contract Period with respect to a B/A to be accepted and purchased under the Term Credit shall extend beyond the Maturity Date.
(c) To facilitate availment of B/A Borrowings, each the Canadian Borrower hereby appoints each Canadian Revolving Lender as its attorney to sign and endorse on its behalfbehalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by such Canadian Lender, blank forms of B/As in the form requested by such Canadian Lender. In this respect, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each The Canadian Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender on behalf of the Canadian Borrower shall bind such the Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such the Canadian Borrower. Each Canadian Revolving Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by 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 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 wilful misconduct of such the Canadian Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder hereunder, and (iv) canceled cancelled at their respective maturities. Each Canadian Revolving 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 that apply to such Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either the Canadian Borrower, a Canadian Revolving Lender shall cancel all forms of B/A that which have been pre-signed or pre-endorsed on behalf of such the Canadian Borrower and that which are held by such Canadian Lender and are not required to be issued in accordance with such the Canadian Borrower’s irrevocable notice. Alternatively, the Canadian Borrower agrees that, at the request of the Canadian Administrative Agent, the Canadian Borrower shall deliver to the 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.
(cd) Drafts of a the Canadian Borrower to be accepted as B/As hereunder shall be signed as set forth out in this Section 2.222.11. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian Revolving Lender or applicable 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 applicable Canadian Borrower.
(de) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 specifying a Borrowing by way of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The In the case of B/A Borrowings under the Canadian Revolving Credit, the aggregate face amount of the B/As to be accepted by the Canadian Lenders shall be in a Canadian Revolving Lender minimum aggregate amount of Cdn.$5,000,000 and shall be a whole multiple of C $100,000Cdn.$1,000,000, and such face amount shall be in the Canadian Revolving Credit Lenders’ pro rata portions of such the Canadian Revolving Borrowing; , provided that the Canadian Administrative Agent may may, in its sole discretion discretion, increase or reduce any Canadian Revolving Credit Lender’s portion of such B/A Borrowing to the nearest C $100,000Cdn.$100,000 without reducing the overall Canadian Revolving Credit Commitments. In the case of B/A Borrowings under the Term Credit, the aggregate face amount of the B/As to be accepted by the Term Credit Lenders shall be in a minimum aggregate amount of Cdn.$5,000,000 and shall be a whole multiple of Cdn.$1,000,000, and such face amount shall be in the Term Credit Lenders’ pro rata portions of such Borrowing, provided that the Canadian Administrative Agent may, in its sole discretion, increase or reduce any Term Credit Lender’s portion of such B/A Borrowing to the nearest Cdn.$100,000 without reducing the overall Term Credit Commitments.
(ef) Upon acceptance of a B/A by a Canadian Revolving Lender, such Canadian Lender shall purchase, or arrange for the purchase of, each B/A from the applicable 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 the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such the Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e) 2.5 in respect of each B/A accepted by such Canadian Lender shall be set off against the Discount Proceeds payable by such Canadian Lender under this Section 2.22(e)2.11.
(fg) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(gh) If a Canadian Revolving Lender is not a chartered bank under the Bank Act (Canada) or if a Canadian Lender notifies the Canadian Administrative Agent in writing that it is otherwise unable or unwilling to accept Bankers’ Acceptances, such Canadian Lender will, instead of accepting and purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower make a note that does not bear interest during the Contract Period Loan (a “B/A Equivalent NoteLoan”), in ) to the form of Exhibit K, issued by such Canadian Borrower in the amount and for the same term as the draft that which such Canadian Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Canadian Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect Discount Proceeds of such B/A Equivalent NoteLoan for the account of the Canadian Borrower. The Acceptance Fee payable by Each such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note Loan will bear interest at the same rate which would result if such Canadian Lender had accepted (and been paid an Acceptance Fee) and purchased by (on a discounted basis) a Bankers’ Acceptance for the relevant Contract Period (it being the intention of the parties that each such Lender B/A Equivalent Loan shall have the same economic consequences for the Canadian Lenders and the Canadian Borrower as the Bankers’ Acceptance which such B/A Equivalent Loan replaces). All such interest shall be set off against paid in advance on the date such B/A 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 payable by of a Bankers’ Acceptance would be deducted from the face amount of the Bankers’ Acceptance. Subject to repayment requirements, on the last day of the relevant Contract Period for such Lender under B/A Equivalent Loan, the Canadian Borrower shall be entitled to convert each such B/A Equivalent Loan into another type of Loan, or to roll over each such B/A Equivalent Loan into another B/A Equivalent Loan, all in accordance with the applicable provisions of this Section 2.22(g)Agreement.
(hi) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, 11:00 a.m. two Business Days before the maturity date last day of the Contract Period of such B/AsA Borrowing, the applicable Canadian Borrower shall notify the Canadian Administrative Agent at if the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such Canadian Borrower intends to issue B/As on such maturity date last day of the Contract Period to provide for the payment of such maturing B/AsA Borrowing. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity datelast day of the Contract Period, such the Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As A Borrowing on the maturity date last day of such B/Asthe Contract Period of thereof. If such the Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, shall be deemed to have been converted on their maturity date the last day of the Contract Period into a Canadian Prime Rate Loan in an amount equal to the face amount of such B/A as provided in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such Canadian Borrower to make such paymentAs.
(ij) Each The Canadian Borrower waives presentment for payment and any other defense, defence to payment of any amounts due to a Canadian Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Canadian Lender in its own right right, and each the Canadian Borrower agrees not to claim any days of grace if such Lender Canadian Lender, as holder holder, sues such the Canadian Borrower on the B/A for payment of the amount payable by such the Canadian Borrower thereunder. On the specified maturity date last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through pay the Canadian Administrative Agent, Agent for the account of the Canadian Revolving Lender Lenders that has have accepted and purchased such B/A the full face amount of such B/A and and, after such payment, such the Canadian Borrower shall have no further liability in respect of such B/A and such Lender Canadian Lenders shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A.
(jk) If a Canadian Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant Participant under Section 9.04(f9.4(e), then then, in respect of any B/A Borrowing, a portion thereof may, at the option of such Canadian Lender, be by way of Bankers’ Acceptance accepted by such participantParticipant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the applicable Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor favour of such participant Participant for delivery to such participant.
(l) Except as required by any Canadian Lender upon the occurrence of an Event of Default, no B/A Borrowing may be repaid by the Canadian Borrower prior to the expiry date of the Contract Period applicable to such B/A Borrowing; provided, however, that the Canadian Borrower may defease any B/A Borrowing by depositing with the Canadian Administrative Agent an amount that is sufficient to repay the full face amount of such B/A Borrowing on the expiry date of the Contract Period applicable to such B/A Borrowing.
Appears in 1 contract
Samples: Senior Facilities Credit Agreement (Tim Hortons Inc.)
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each Canadian the Parent Borrower may request a Borrowing denominated in Canadian Revolving Borrowing dollars by presenting drafts for acceptance and, if applicable, purchase as B/As by the Canadian Revolving Lenders and the Parent Borrower may request a Borrowing denominated in Canadian dollars by presenting drafts for acceptance and, if applicable, purchase as B/As by the Canadian Revolving Lenders.
(b) To facilitate No Contract Period with respect to a B/A Borrowingsto be accepted and, each 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 Revolving 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 Revolving Lender, blank forms of B/As in the form requested by such Lender. In this respect, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Canadian The Parent Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender shall bind such Canadian Parent Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Canadian Parent Borrower. Each 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 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 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 Lender or its officers, employees, agents or representativesCanadian Lender. Each applicable Canadian Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iiiii) accepted and purchased by it hereunder and (iviii) canceled at their respective maturities. Each Canadian Revolving 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 that which apply to such Canadian Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either Canadian the Parent Borrower, a Canadian Revolving Lender shall cancel all forms of B/A that which have been pre-signed or pre-endorsed on behalf of such Canadian Parent Borrower and that which are held by such Canadian Lender and are not required to be issued in accordance with such Canadian Parent 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.
(cd) Drafts of a Canadian the Parent 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 Revolving Lender Lenders or applicable Canadian the 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 such B/A so signed shall be binding on the applicable Canadian such Parent Borrower.
(de) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 by way borrowing, continuation or conversion of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders Lenders, and shall advise each Canadian Revolving Lender Lender, of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by a Canadian Revolving Lender shall be a whole in an integral multiple of C $100,000, C$100,000 and such face amount shall be in the each Canadian Revolving Lenders’ Lender’s pro rata portions portion of such Canadian Revolving Borrowing; provided provided, that the Canadian Administrative Agent may may, in its sole discretion discretion, increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $C$100,000.
(ef) Upon acceptance The Parent Borrower may specify in a notice of a borrowing or conversion or continuation pursuant to Section 2.03 or Section 2.10, respectively, that it desires that any B/A As requested by a such notice be purchased by the applicable Canadian Revolving LenderLenders, such Lender in which case the applicable Canadian Lenders shall purchase, or arrange the purchase of, each B/A from the applicable Canadian such Parent Borrower at the B/A Discount Rate for such Canadian Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian such Parent Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such Canadian Parent Borrower to a Canadian Revolving Lender under this Section 2.22(e) 2.06 in respect of each B/A accepted by such Canadian Lender shall be set off against the Discount Proceeds payable by such Canadian Lender under this Section 2.22(e)2.22.
(fg) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(gh) If a Canadian Revolving Lender notifies the Canadian Administrative Agent in writing that it is unable or unwilling to accept Bankers’ Acceptances, such Canadian Lender will, instead of accepting and and, if applicable, purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period make an advance (a “B/A Equivalent NoteLoan”), in ) to the form of Exhibit K, issued by such Canadian Parent Borrower 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, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Canadian Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect Discount Proceeds of such B/A Equivalent NoteLoan for the account of such Parent Borrower. The Acceptance Fee payable by Each such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by Loan will bear interest at the same rate that would result if such Lender shall be set off against had accepted (and been paid an Acceptance Fee) and purchased (on a discounted basis at the Discount Proceeds payable by such Lender under this Section 2.22(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before Discount Rate) a Bankers’ Acceptance for the maturity date relevant Contract Period (it being the intention of the parties that each such B/As, the applicable Canadian Borrower A Equivalent Loan shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on have the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide economic consequences for the payment of such maturing B/As. If Lenders and the applicable Canadian Parent Borrower fails to notify as the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of Bankers’ Acceptance which such B/As A Equivalent Loan replaces). All such interest shall be paid in advance on the maturity date of such B/As. If such Canadian Borrower fails to make such paymentA Equivalent Loan is made, such maturing B/As shall, subject to satisfaction of and will be deducted from the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face principal amount of such B/A as provided Equivalent Loan in Section 2.07 the same manner in which the Discount Proceeds of a Bankers’ Acceptance would be deducted from the face amount of the Bankers’ Acceptance. Each B/A Equivalent Loan shall be evidenced by a non-interest bearing promissory note (a “Discount Note”) of the Parent Borrower, denominated in Canadian dollars, executed and delivered by the Parent Borrower to such Canadian Borrower shall on demand pay any lossesLender, costs or penalties that may have been incurred by substantially in the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure form of such Canadian Borrower to make such payment.Exhibit H.
(i) Each Canadian The Parent Borrower waives presentment for payment and any other defense, defense to payment of any amounts due to a Canadian Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Canadian Lender in its own right and each Canadian the Parent Borrower agrees not to claim any days of grace if such Canadian Lender as holder sues such Canadian Parent Borrower on the B/A for payment of the amount payable by such Canadian Parent Borrower thereunder. On the specified maturity date last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Parent Borrower shall pay, through pay the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and after such payment, such Canadian Parent 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) If a Except as required by any Canadian Revolving Lender grants a participation in a portion upon the occurrence of its rights under this Agreement an Event of Default, no B/A Loan may be repaid by the Parent Borrower prior to a participant under Section 9.04(f)the expiry date of the Contract Period applicable to such B/A Loan; provided, then in respect of however, that any B/A BorrowingLoan may be defeased as provided in the proviso to Section 2.11(a).
(k) With respect to any repayment of unmatured B/A’s pursuant to the proviso to Section 2.11(a) or otherwise hereunder, a portion thereof may, it is agreed that the Parent Borrower shall provide for the funding in full of the unmatured B/A’s to be repaid by paying to and depositing with the Canadian Administrative Agent Cash Collateral for each such unmatured B/A equal to the face amount payable at maturity thereof. The Canadian Administrative Agent shall hold such Cash Collateral in an interest bearing Cash Collateral account at rates prevailing at the option time of deposit for similar accounts with the Canadian Administrative Agent; such LenderCash Collateral, be by way such Cash Collateral account, any accounts receivable, claims, instruments or securities evidencing or relating to the foregoing, and any proceeds of Bankers’ Acceptance accepted by such participant. In such eventany of the foregoing (collectively, the applicable “Outstanding BAs Collateral”) shall be assigned to the Canadian Administrative Agent as security for the obligations of the Parent Borrower shall upon request in relation to such B/A’s and the security interest of the Canadian Administrative Agent or created in such Outstanding BAs Collateral shall rank in priority to all other security interests and adverse claims against such Outstanding BAs Collateral. Such Outstanding BAs Collateral shall be applied to satisfy the obligations of the Parent Borrower for such B/A’s as they mature and the Canadian Revolving Lender granting Administrative Agent is hereby irrevocably directed by the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor of Parent Borrower to apply any such participant for delivery Outstanding BAs Collateral to such participantmaturing B/A’s. The Outstanding BAs Collateral created herein shall not be released to the Parent Borrower prior to the maturity of the applicable B/As without the consent of the applicable Canadian Lenders; however, interest on such deposited amounts shall be for the account of the Parent Borrower and may be withdrawn by the Parent Borrower so long as no Default or Event of Default is then continuing. If, after maturity of the B/A’s for which such Outstanding BAs Collateral is held and application by the Canadian Administrative Agent of the Outstanding BAs Collateral to satisfy the obligations of the Parent Borrower hereunder with respect to the B/A’s being repaid, any interest or other proceeds of the Outstanding BAs Collateral remains, such interest or other proceeds shall be promptly paid and transferred by the Canadian Administrative Agent to the Parent Borrower so long as no Default or Event of Default is then continuing.
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Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each the Canadian Borrower may request a Borrowing denominated in Canadian Revolving Borrowing Dollars by presenting drafts for acceptance and and, if applicable, purchase as B/As by the Canadian Revolving Lenders.
(b) To facilitate No Contract Period with respect to a B/A Borrowingsto be accepted and, each 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 Revolving 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. In this respect, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each The Canadian Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender shall bind such the Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such the Canadian Borrower. Each 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 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 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 Lender or its officers, employees, agents or representativesrepresentatives as determined by a court of competent jurisdiction by final and non-appealable judgment. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iiiii) accepted and purchased by it hereunder and (iviii) canceled at their respective maturities. Each Canadian Revolving 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 that which apply to such Canadian Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either the Canadian Borrower, a Canadian Revolving Lender shall cancel all forms of B/A that which have been pre-signed or pre-endorsed on behalf of such the Canadian Borrower and that which are held by such Canadian Lender and are not required to be issued in accordance with such 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.
(cd) Drafts of a the Canadian Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.222.5. Notwithstanding that any person Person whose signature appears on any B/A may no longer be an authorized signatory for any of the Canadian Revolving Lender Lenders or applicable 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 applicable Canadian Borrower.
(de) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 by way borrowing, continuation or conversion of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by a Canadian Revolving Lender shall be a whole in an integral multiple of C $100,000, C$100,000 and such face amount shall be in the each Canadian Revolving Lenders’ pro rata portions Lender’s Applicable Percentage of such Canadian Revolving Borrowing, and each such Canadian Borrowing shall be no less than $1,000,000; provided provided, that the Canadian Administrative Agent may may, in its sole discretion discretion, increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $C$100,000.
(ef) Upon acceptance The Canadian Borrower may specify in a notice of a borrowing or conversion or continuation pursuant to Section 2.6(a) or Section 2.6(b), respectively, that it desires that any B/A As requested by a such notice be purchased by the Canadian Revolving LenderLenders, such Lender in which case the Canadian Lenders shall purchase, or arrange the purchase of, each B/A from the applicable 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 the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such the Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e2.10(f) in respect of each B/A accepted by such Canadian Lender shall be set off against the Discount Proceeds payable by such Canadian Lender under this Section 2.22(e)2.5.
(fg) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(gh) If a Canadian Revolving Lender notifies the Canadian Administrative Agent in writing that it is unable or unwilling to accept Bankers’ Acceptances, such Canadian Lender will, instead of accepting and and, if applicable, purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period make an advance (a “B/A Equivalent NoteAdvance”), in ) to the form of Exhibit K, issued by such Canadian Borrower 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, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Canadian Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect Discount Proceeds of such B/A Equivalent NoteAdvance for the account of the Canadian Borrower. The Acceptance Fee payable by Each such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by Advance will bear interest at the same rate that would result if such Lender shall be set off against had accepted (and been paid an Acceptance Fee) and purchased (on a discounted basis at the Discount Proceeds payable by Rate) a Bankers’ Acceptance for the relevant Contract Period (it being the intention of the parties that each such Lender under this Section 2.22(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before Equivalent Advance shall have the maturity date of same economic consequences for the Lenders and the Canadian Borrower as the Bankers’ Acceptance which such B/As, the applicable Canadian Borrower A Equivalent Advance replaces). All such interest shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth be paid in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover advance on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on A Equivalent Advance is made, and will be deducted from the maturity date of such B/As. If such Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face principal amount of such B/A as provided Equivalent Advance in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to same manner in which the failure Discount Proceeds of such Canadian Borrower to make such paymenta Bankers’ Acceptance would be deducted from the face amount of the Bankers’ Acceptance.
(i) Each The Canadian Borrower waives presentment for payment and any other defense, defense to payment of any amounts due to a Canadian Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Canadian Lender in its own right and each the Canadian Borrower agrees not to claim any days of grace if such Canadian Lender as holder sues such the Canadian Borrower on the B/A for payment of the amount payable by such the Canadian Borrower thereunder. On the specified maturity date last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through pay the Canadian Administrative Agent, the Canadian Revolving 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, such 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) If a Except as required by any Canadian Revolving Lender grants a participation in a portion upon the occurrence of its rights under this Agreement an Event of Default, no B/A Advance may be repaid by the Canadian Borrower prior to a participant under Section 9.04(f)the expiry date of the Contract Period applicable to such B/A Advance; provided, then in respect of however, that any B/A Borrowing, a portion thereof may, at the option of such Lender, or B/A Equivalent Advance may be by way of Bankers’ Acceptance accepted by such participant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking defeased as provided in favor of such participant for delivery to such participantSection 2.7(b)(ii).
Appears in 1 contract
Samples: Credit Agreement (Complete Production Services, Inc.)
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each Canadian Borrower Canco may request a Revolving Credit Borrowing denominated in Canadian Revolving Borrowing Dollars by presenting drafts for acceptance and and, if applicable, purchase as B/As A's by the Canadian Revolving Lenders.
(b) To facilitate No Contract Period with respect to a B/A Borrowingsto be accepted and, each if applicable, purchased as a Revolving Loan shall extend beyond the Revolving Credit Maturity Date. All B/A's and B/A Loans shall be denominated in Canadian Borrower Dollars.
(c) To facilitate availment of B/A Loans, Canco hereby appoints each Canadian Revolving Lender as its attorney to sign and endorse on its behalfbehalf (in accordance with a notice of Borrowing relating to a B/A Loan pursuant to Section 2.03 or Section 2.10), in handwriting or by facsimile or mechanical signature as and when deemed necessary by such Revolving Lender, blank forms of B/As A's in the form requested by such Revolving Lender. In this respect, it is each Canadian Revolving Lender’s 's responsibility to maintain an adequate supply of blank forms of B/As A's for acceptance under this Agreement. Each Canadian Borrower Canco recognizes and agrees that all B/As A's signed and/or endorsed on its behalf by a Canadian Revolving Lender on behalf of Canco shall bind such Canadian Borrower Canco as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Canadian BorrowerCanco. Each Canadian Revolving Lender is hereby authorized (in accordance with a notice of Borrowing relating to a B/A Loan) to issue such B/As A's 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 A's required to be accepted and purchased by such 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 wilful misconduct of such the Revolving Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record record, which shall be made available to Canco upon its request, with respect to B/As A's (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder hereunder, and (iv) canceled at their respective maturities. Each Canadian Revolving 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 that apply to such Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either Canadian BorrowerCanco, a Canadian Revolving Lender shall cancel all forms of B/A that A's which have been pre-signed or pre-endorsed on behalf of such Canadian Borrower Canco and that are held by such Revolving Lender and are not required to be issued in accordance with such Canadian Borrower’s Canco's irrevocable notice. Alternatively, Canco agrees that, at the request of the Canadian Administrative Agent, Canco shall deliver to the 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.
(cd) Drafts of a Canadian Borrower Canco to be accepted as B/As A's hereunder shall be signed as set forth in this Section 2.22. Notwithstanding that any person Person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian Revolving Lender or applicable Canadian Borrower Canco 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 applicable Canadian BorrowerCanco.
(de) Promptly following the receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 borrowing specifying a Revolving Credit Borrowing by way of B/AsA's, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As A's to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The In the case of Revolving Loans comprised of B/A Loans, the aggregate face amount of the B/As A's to be accepted by a Canadian Revolving Lender shall be in a minimum aggregate amount of Cdn.$100,000 and shall be a whole multiple of C $100,000Cdn.$100,000, and such face amount shall be in the Canadian Revolving Lenders’ pro rata ' PRO RATA portions of such Canadian Revolving Borrowing; , provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Revolving Lender’s 's portion of such B/A Borrowing Loan to the nearest C $100,000Cdn.$100,000 without reducing the aggregate Revolving Credit Commitments.
(ef) Upon Canco may specify in a notice of borrowing pursuant to Section 2.03 or Section 2.10 that it desires that any B/A's requested by such notice of borrowing be purchased by the Revolving Lenders, in which case the Revolving Lenders shall, upon acceptance of a B/A by a Canadian Revolving Lender, such Lender shall purchase, or arrange for the purchase of, each B/A from the applicable Canadian Borrower Canco at the Discount Rate for such Revolving Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian BorrowerCanco. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable 56 51 by such Canadian Borrower Canco to a Canadian Revolving Lender under this Section 2.22(e2.06(d) in respect of each B/A accepted by such Revolving Lender shall be set off against the Discount Proceeds payable by such Revolving Lender under this Section 2.22(e)2.22.
(fg) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As A's accepted and purchased by it.
(gh) If a Canadian Revolving Lender is not a chartered bank under the Bank Act (Canada) or if a Revolving Lender notifies the Canadian Administrative Agent in writing that it is otherwise unable or unwilling to accept Bankers’ ' Acceptances, such Revolving Lender will, instead of accepting and and, if applicable, purchasing Bankers’ ' Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period make an advance (a “"B/A Equivalent Note”), in the form of Exhibit K, issued by such Canadian Borrower Loan") to Canco in the amount and for the same term as the draft that such Revolving Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Revolving Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect Discount Proceeds of such B/A Equivalent NoteLoan for the account of Canco. The Acceptance Fee payable by Each such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by Loan will bear interest at the same rate that would result if such Lender shall be set off against had accepted (and been paid an Acceptance Fee) and purchased (on a discounted basis at the Discount Proceeds payable by Rate) a Bankers' Acceptance for the relevant Contract Period (it being the intention of the parties that each such Lender under this Section 2.22(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before Equivalent Loan shall have the maturity date of same economic consequences for the Lenders and Canco as the Bankers' Acceptance which such B/As, the applicable Canadian Borrower A Equivalent Loan replaces). All such interest shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth be paid in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover advance on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on A Equivalent Loan is made, and will be deducted from the maturity date of such B/As. If such Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face principal amount of such B/A as provided Equivalent Loan in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to same manner in which the failure Discount Proceeds of such Canadian Borrower to make such paymenta Bankers' Acceptance would be deducted from the face amount of the Bankers' Acceptance.
(i) Each Canadian Borrower Canco waives presentment for payment and any other defense, defense to payment of any amounts due to a Revolving Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Revolving Lender in its own right right, and each Canadian Borrower Canco agrees not to claim any days of grace if such Lender Revolving Lender, as holder holder, sues such Canadian Borrower Canco on the B/A for payment of the amount payable by such Canadian Borrower Canco thereunder. On the specified maturity date last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, Canco shall pay the applicable Canadian Borrower shall pay, through the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and and, after such payment, such Canadian Borrower Canco shall have no further liability in respect of such B/A and such Revolving Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A.
(j) If a Canadian Except as required by any Revolving Lender grants a participation in a portion upon the occurrence of its rights under this Agreement an Event of Default, no B/A Loan may be repaid by Canco prior to a participant under Section 9.04(f)the expiry date of the Contract Period applicable to such B/A Loan; provided, then in respect of however, that any B/A Borrowing, a portion thereof may, at Loan may be defeased as provided in the option of such Lender, be by way of Bankers’ Acceptance accepted by such participant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor of such participant for delivery proviso to such participantSection 2.12(a).
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Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each Canadian Borrower may request a Canadian Revolving Borrowing Loan denominated in Canadian Dollars by presenting drafts for acceptance and and, if applicable, purchase as B/As A's by the Canadian Revolving Lenders.
(b) To facilitate No Contract Period with respect to a B/A BorrowingsLoan shall extend beyond the Canadian Revolver Termination Date. All B/A's and B/A Loans shall be denominated in Canadian Dollars.
(c) To facilitate availment of B/A Loans, each Canadian Borrower hereby appoints each Canadian Revolving Lender as its attorney to sign and endorse on its behalfbehalf (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 forms of B/As drafts in the form requested by such Canadian Revolving Lender. In this respect, it is each Canadian Revolving Lender’s 's responsibility to maintain an adequate supply of blank forms of B/As drafts for acceptance under this Agreement. Each Canadian Borrower recognizes and agrees that all B/As drafts signed and/or endorsed on its behalf by a Canadian Revolving Lender on behalf of such Canadian Borrower shall bind such Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such 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 A's endorsed in blank in such face amounts as may be determined by such Canadian Revolving Lender; , provided that that, the aggregate amount thereof is equal to the aggregate amount of B/As drafts required to be accepted and purchased by such 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 Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder and (iv) canceled at their respective maturities. Each Canadian Revolving 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 that apply to such Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either Canadian Borrower, a Canadian Revolving Lender shall cancel all forms of B/A that have been pre-signed or pre-endorsed on behalf of such Canadian Borrower and that are held by such Lender and are not required to be issued in accordance with such Canadian Borrower’s irrevocable notice.
(c) Drafts of a 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 Canadian Revolving Lender or applicable 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 applicable Canadian Borrower.
(d) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 by way of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by a Canadian Revolving Lender shall be a whole multiple of C $100,000, and such face amount shall be in the Canadian Revolving Lenders’ pro rata portions of such Canadian Revolving Borrowing; provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $100,000.
(e) Upon acceptance of a B/A by a Canadian Revolving Lender, such Lender shall purchase, or arrange the purchase of, each B/A from the applicable Canadian Borrower at the Discount Rate for such Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e) in respect of each B/A accepted by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(e).
(f) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(g) If a Canadian Revolving Lender notifies the Canadian Administrative Agent in writing that it is unable or unwilling to accept Bankers’ Acceptances, such Lender will, instead of accepting and purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period (a “B/A Equivalent Note”), in the form of Exhibit K, issued by such Canadian Borrower in the amount and for the same term as the draft that such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect of such B/A Equivalent Note. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before the maturity date of such B/As, the applicable Canadian Borrower shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on the maturity date of such B/As. If such Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face amount of such B/A as provided in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such Canadian Borrower to make such payment.
(i) Each Canadian Borrower waives presentment for payment and any other defense, in respect of a B/A accepted and purchased by it pursuant to this Agreement, that might exist solely by reason of such B/A being held, at the maturity thereof, by such Lender in its own right and each Canadian Borrower agrees not to claim any days of grace if such Lender as holder sues such Canadian Borrower on the B/A for payment of the amount payable by such Canadian Borrower thereunder. On the specified maturity date of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and after such payment, such 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.
(j) If a Canadian Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant under Section 9.04(f), then in respect of any B/A Borrowing, a portion thereof may, at the option of such Lender, be by way of Bankers’ Acceptance accepted by such participant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor of such participant for delivery to such participant.Revolving
Appears in 1 contract
Samples: Credit Agreement (Veritas DGC Inc)
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each a Canadian Borrower may request a Canadian Revolving Credit Borrowing by presenting drafts for acceptance and purchase as B/As by the Canadian Revolving Lenders.
(b) To facilitate No Contract Period with respect to a B/A Borrowingsshall extend beyond the Canadian Revolving Commitment Maturity Date.
(c) To facilitate availment of the Canadian Revolving Credit Borrowings by way of B/As, each Canadian Borrower hereby appoints each Canadian Revolving 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 substantially in the form requested by such Lenderof Schedule 2.26. In this respect, it is each Canadian Revolving Lender’s 's responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each The Canadian Borrower recognizes Borrowers recognize and agrees agree that all B/As signed and/or endorsed on its their behalf by a Canadian Revolving Lender shall bind such Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Canadian Borrower. Each 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 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 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 the Canadian Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to B/As (ia) received by it from the Canadian Administrative Agent in blank hereunder, (iib) voided by it for any reason, (iiic) accepted and purchased by it hereunder hereunder, and (ivd) canceled cancelled at their respective maturities. Each Canadian Revolving 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 that which apply to such Canadian Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either the Canadian Borrower Borrowers at the applicable Canadian Borrower’s Borrowers' expense upon request. On request by or on behalf of either the Canadian BorrowerBorrowers, a Canadian Revolving Lender shall cancel all forms of B/A that which have been pre-signed or pre-endorsed on behalf of such the Canadian Borrower Borrowers and that which are held by such the said Canadian Lender and are not required to be issued in accordance with such the Canadian Borrower’s Borrowers' irrevocable notice.
(cd) Drafts of a the Canadian Borrower Borrowers to be accepted as B/As hereunder shall be signed as set forth in this Section 2.222.26. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for any of the Canadian Revolving Lender Lenders or applicable the Canadian Borrower Borrowers 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 applicable Canadian BorrowerBorrowers.
(de) Promptly following receipt of a Borrowing Request notice of borrowing, notice of rollover or notice of rollover pursuant to Section 2.03 conversion by way of B/As, in accordance with Section 2.03(b) or Section 2.26(h), the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by a Canadian Revolving Lender shall be a whole an integral multiple of C $100,000, C$100,000 and such face amount shall be in the each Canadian Revolving Lenders’ Lender's pro rata portions portion of such Canadian Revolving Credit Borrowing; provided provided, that the Canadian Administrative Agent may may, in its sole discretion discretion, increase or reduce any Canadian Revolving Lender’s 's portion of such B/A Borrowing to the nearest C $C$100,000.
(ef) Upon acceptance of a B/A by a Canadian Revolving Lender, such Canadian Lender shall purchase, or arrange the purchase of, each B/A from the applicable 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 the Discount Proceeds for the account of the applicable such Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e) 2.06 in respect of each B/A accepted by such Canadian Lender shall be set off against the Discount Proceeds payable by such Canadian Lender under this Section 2.22(e)2.26.
(fg) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(g) If a Canadian Revolving Lender notifies the Canadian Administrative Agent in writing that it is unable or unwilling to accept Bankers’ Acceptances, such Lender will, instead of accepting and purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period (a “B/A Equivalent Note”), in the form of Exhibit K, issued by such Canadian Borrower in the amount and for the same term as the draft that such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect of such B/A Equivalent Note. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(g).
(h) With respect to each Canadian Revolving Credit Borrowing which is outstanding hereunder by way of B/A BorrowingAs, at or before 10:00 a.m., 11:00 a.m. (Toronto time, two ) three Business Days before the maturity date of such B/As, the applicable a Canadian Borrower shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s 's address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such a Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable a Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on the maturity date of such B/As. If such a Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, shall be deemed to have been converted on their maturity date into a Canadian C$ Prime Rate Loan in an amount equal to the face amount of such B/A as provided in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such Canadian Borrower to make such paymentAs.
(i) Each Canadian Borrower waives presentment for payment and any other defense, defense to payment of any amounts due to a Canadian Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Canadian Lender in its own right and each Canadian Borrower agrees not to claim any days of grace if such Canadian Lender as holder sues such a Canadian Borrower on the B/A for payment of the amount payable by such a Canadian Borrower thereunder. On the specified maturity date of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through pay the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and after such payment, such the applicable 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) If any Event of Default shall occur and be continuing and the Loans are accelerated pursuant to Article VII, each Canadian Borrower shall, on the Business Day it receives notice from the Canadian Administrative Agent, deposit in an account with the Canadian Administrative Agent, for the benefit of the Canadian Lenders, an amount in cash equal to its Bankers' Acceptances Exposure as of such date. Such deposit shall be held by the Canadian Administrative Agent as collateral for the payment and performance of the Obligations. So long as such Event of Default is continuing, the Canadian Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest earned on the investment of such deposits in Permitted Investments, which investments shall be made at the option and sole discretion of the Canadian Administrative Agent, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall automatically be applied by the Canadian Administrative Agent to reimburse the applicable Canadian Lenders for Bankers' Acceptances Exposure and, if the maturity of the Loans has been accelerated, to satisfy the Obligations. All remaining amounts on deposit shall be returned to the applicable Canadian Borrower within three Business Days after all Events of Default have been cured or waived.
(k) Each Canadian Borrower shall have the right at any time upon irrevocable notice to the Canadian Administrative Agent not later than 12:00 noon Toronto time, three Business Days prior to conversion to convert a C$ Prime Rate Loan to a Canadian Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant under Section 9.04(f), then in respect of any B/A Borrowing, subject to the following conditions:
(a) each conversion shall be made pro rata among the applicable Canadian Lenders in accordance with the respective principal amounts of the C$ Prime Rate Loans comprising the converted Borrowing;
(b) if less than all of the outstanding principal amount of any Borrowing shall be converted, the aggregate principal amount of such Borrowing converted shall not be less than C$1,000,000;
(c) each conversion shall be effected by each applicable Canadian Lender by such Canadian Lender's converting its applicable C$ Prime Rate Loan (or a portion thereof maythereof) into a B/A, at the option of such Lender, and accrued interest on any C$ Prime Rate Loan (or any portion thereof) being converted shall be paid by way of Bankers’ Acceptance accepted by such participant. In such event, the applicable Canadian Borrower at the time of conversion;
(d) all Bankers' Acceptances to be issued as a result of the conversion of the C$ Prime Rate Loan shall upon request be issued in accordance with the provisions of this Section 2.26; and
(e) C$ Prime Rate Borrowing may not be converted into a Canadian B/A Borrowing if a Default or an Event of Default has occurred and is continuing and the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor of have determined that such participant for delivery to such participantconversion is not appropriate.
Appears in 1 contract
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each a Canadian Borrower may request a Canadian Revolving Credit Borrowing by presenting drafts for acceptance and purchase as B/As by the Canadian Revolving Lenders.
(b) To facilitate No Contract Period with respect to a B/A Borrowingsshall extend beyond the Canadian Revolving Commitment Maturity Date.
(c) To facilitate availment of the Canadian Revolving Credit Borrowings by way of B/As, each Canadian Borrower hereby appoints each Canadian Revolving 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 substantially in the form requested by such Lenderof Schedule 2.26. In this respect, it is each Canadian Revolving Lender’s 's responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each The Canadian Borrower recognizes Borrowers recognize and agrees agree that all B/As signed and/or endorsed on its their behalf by a Canadian Revolving Lender shall bind such Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Canadian Borrower. Each 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 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 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 wilful misconduct of such the Canadian Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to B/As (ia) received by it from the Canadian Administrative Agent in blank hereunder, (iib) voided by it for any reason, (iiic) accepted and purchased by it hereunder hereunder, and (ivd) canceled cancelled at their respective maturities. Each Canadian Revolving 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 that which apply to such Canadian Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either the Canadian Borrower Borrowers at the applicable Canadian Borrower’s Borrowers' expense upon request. On request by or on behalf of either the Canadian BorrowerBorrowers, a Canadian Revolving Lender shall cancel all forms of B/A that which have been pre-signed or pre-endorsed on behalf of such the Canadian Borrower Borrowers and that which are held by such the said Canadian Lender and are not required to be issued in accordance with such the Canadian Borrower’s Borrowers' irrevocable notice.
(cd) Drafts of a the Canadian Borrower Borrowers to be accepted as B/As hereunder shall be signed as set forth in this Section 2.22subsection 2.26. Notwithstanding that any person Person whose signature appears on any B/A may no longer be an authorized signatory for any of the Canadian Revolving Lender Lenders or applicable the Canadian Borrower Borrowers 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 applicable Canadian BorrowerBorrowers.
(de) Promptly following receipt of a Borrowing Request notice of borrowing, notice of rollover or notice of rollover pursuant to Section 2.03 conversion by way of B/As, in accordance with Section 2.03(b) or Section 2.26(h), the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by a Canadian Revolving Lender shall be a whole an integral multiple of C $100,000, C$100,000 and such face amount shall be in the each Canadian Revolving Lenders’ Lender's pro rata portions portion of such Canadian Revolving Credit Borrowing; provided provided, that the Canadian Administrative Agent may may, in its sole discretion discretion, increase or reduce any Canadian Revolving Lender’s 's portion of such B/A Borrowing to the nearest C $C$100,000.
(ef) Upon acceptance of a B/A by a Canadian Revolving Lender, such Canadian Lender shall purchase, or arrange the purchase of, each B/A from the applicable 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 the Discount Proceeds for the account of the applicable such Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e) 2.06 in respect of each B/A accepted by such Canadian Lender shall be set off against the Discount Proceeds payable by such Canadian Lender under this Section 2.22(e)2.26.
(fg) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(g) If a Canadian Revolving Lender notifies the Canadian Administrative Agent in writing that it is unable or unwilling to accept Bankers’ Acceptances, such Lender will, instead of accepting and purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period (a “B/A Equivalent Note”), in the form of Exhibit K, issued by such Canadian Borrower in the amount and for the same term as the draft that such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect of such B/A Equivalent Note. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(g).
(h) With respect to each Canadian Revolving Credit Borrowing which is outstanding hereunder by way of B/A BorrowingAs, at or before 10:00 a.m., 11:00 a.m. (Toronto time, two ) three Business Days before the maturity date of such B/As, the applicable a Canadian Borrower shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s 's address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such a Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable a Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on the maturity date of such B/As. If such a Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, shall be deemed to have been converted on their maturity date into a Canadian C$ Prime Rate Loan in an amount equal to the face amount of such B/A as provided in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such Canadian Borrower to make such paymentAs.
(i) Each Canadian Borrower waives presentment for payment and any other defense, defence to payment of any amounts due to a Canadian Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Canadian Lender in its own right and each Canadian Borrower agrees not to claim any days of grace if such Canadian Lender as holder sues such a Canadian Borrower on the B/A for payment of the amount payable by such a Canadian Borrower thereunder. On the specified maturity date of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through pay the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and after such payment, such the applicable 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) If any Event of Default shall occur and be continuing and the Loans are accelerated pursuant to Article VII, each Canadian Borrower shall, on the Business Day it receives notice from the Canadian Administrative Agent, deposit in an account with the Canadian Administrative Agent, for the benefit of the Canadian Lenders, an amount in cash equal to its Bankers' Acceptances Exposure as of such date. Such deposit shall be held by the Canadian Administrative Agent as collateral for the payment and performance of the Obligations. So long as such Event of Default is continuing, the Canadian Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest earned on the investment of such deposits in Permitted Investments, which investments shall be made at the option and sole discretion of the Canadian Administrative Agent, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall automatically be applied by the Canadian Administrative Agent to reimburse the applicable Canadian Lenders for Bankers' Acceptances Exposure and, if the maturity of the Loans has been accelerated, to satisfy the Obligations. All remaining amounts on deposit shall be returned to the applicable Canadian Borrower within three Business Days after all Events of Default have been cured or waived.
(k) Each Canadian Borrower shall have the right at any time upon irrevocable notice to the Canadian Administrative Agent not later than 12:00 noon Toronto time, three Business Days prior to conversion to convert a C$ Prime Rate Loan to a Canadian Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant under Section 9.04(f), then in respect of any B/A Borrowing, subject to the following conditions:
(a) each conversion shall be made pro rata among the applicable Canadian Lenders in accordance with the respective principal amounts of the C$ Prime Rate Loans comprising the converted Borrowing;
(b) if less than all of the outstanding principal amount of any Borrowing shall be converted, the aggregate principal amount of such Borrowing converted shall not be less than C$1,000,000;
(c) each conversion shall be effected by each applicable Canadian Lender by such Canadian Lender's converting its applicable C$ Prime Rate Loan (or a portion thereof maythereof) into a B/A, at the option of such Lender, and accrued interest on any C$ Prime Rate Loan (or any portion thereof) being converted shall be paid by way of Bankers’ Acceptance accepted by such participant. In such event, the applicable Canadian Borrower at the time of conversion;
(d) all Bankers' Acceptances to be issued as a result of the conversion of the C$ Prime Rate Loan shall upon request be issued in accordance with the provisions of this Section 2.26; and
(e) a C$ Prime Rate Borrowing may not be converted into a Canadian B/A Borrowing if a Default or an Event of Default has occurred and is continuing and the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor of have determined that such participant for delivery to such participantconversion is not appropriate.
Appears in 1 contract
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each the Canadian Borrower Borrowers may request a Borrowings of Canadian Revolving Borrowing Loans by presenting drafts for acceptance and purchase as B/As by the Canadian Revolving Lenders.
(b) To facilitate availment of B/A Borrowings, the Canadian Borrowers hereby appoint each Canadian Borrower hereby appoints each Canadian Revolving Lender as its attorney their attorney-in-fact to sign and endorse on its their 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. In this respect, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each The Canadian Borrower recognizes Borrowers recognize and agrees agree that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender shall jointly and severally bind such the Canadian Borrower Borrowers as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such each Canadian Borrower. Each 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 Lender; provided , 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 Revolving Lender or any Affiliate thereof 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 or its Affiliate, as applicable, or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder and (iv) canceled at their respective maturities. Each Canadian Revolving 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 that which apply to such Canadian Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either the Canadian Borrower Borrowers at the applicable Canadian Borrower’s Borrowers’ expense upon request. On request by or on behalf of either the Canadian BorrowerBorrowers, a Canadian Revolving Lender shall cancel all forms of B/A that As which have been pre-signed or pre-endorsed on behalf of such the Canadian Borrower Borrowers and that which are held by such Canadian Lender and are not required to be issued in accordance with such the Canadian Borrower’s Borrowers’ irrevocable notice. The Canadian Borrowers agree that, at the request of the Canadian Administrative Agent, they shall deliver to the 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 clearance system maintained by the Canadian Depository for Securities.
(c) Drafts of a the Canadian Borrower Borrowers to be accepted as B/As hereunder shall be signed as set forth in this Section 2.222.14. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian Revolving Lender or applicable the Canadian Borrower Borrowers 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 applicable Canadian BorrowerBorrowers.
(d) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 by way of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by a the Canadian Revolving Lender Lenders in respect of any Borrowing or rollover of B/A Loans shall be a whole multiple of C $100,000, not less than C$500,000 and such face amount shall be in the Canadian Revolving Lenders’ pro rata portions an integral multiple of such Canadian Revolving Borrowing; provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $C$100,000.
(e) Upon acceptance of a B/A by a Canadian Revolving Lender, such Canadian Lender shall purchase, or arrange the purchase of, each such B/A from the applicable Canadian Borrower Borrowers at the Discount Rate for such Canadian Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A Borrowers in which event an Acceptance Fee shall be payable by the Canadian Borrowers to such Canadian Lender in respect of such B/A. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e) in respect of each B/A accepted by such Lender and shall be set off against the Discount Proceeds payable by such Canadian Lender under this Section 2.22(e)Section.
(f) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(g) If a Canadian Revolving Lender is not a chartered bank under the Bank Act (Canada) or if a Canadian Lender notifies the Canadian Administrative Agent in writing that it is otherwise unable or unwilling to accept Bankers’ AcceptancesB/As, such Canadian Lender will, instead of accepting and purchasing Bankers’ AcceptancesB/As, purchase from the applicable Canadian Borrower Borrowers a non-interest bearing note that does not bear interest during the Contract Period denominated in C$ (a “B/A Equivalent Note”), in the form of Exhibit K, issued by such the Canadian Borrower Borrowers in the amount and for the same term as the draft that which such Canadian Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Canadian Lender will provide to the Canadian Administrative Agent the proceeds Discount Proceeds of such purchase B/A Equivalent Note for the account of the applicable any Canadian Borrower. The applicable Each such B/A Equivalent Note will bear interest at the same rate which would result if such Canadian 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 B/A Equivalent Note shall have the same economic consequences for the Canadian Lenders and any Canadian Borrower willas the B/A which such B/A Equivalent Note replaces). All such interest shall be paid in advance on the date such B/A Loan is made, upon purchase and will be deducted from the principal amount of such B/A Equivalent Note in the same manner in which the Discount Proceeds of a B/A would be deducted from the face amount of the B/A. Subject to repayment requirements, on the last day of the relevant Contract Period for such B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such any Canadian Borrower the shall be entitled to convert each such B/A Equivalent Note an Acceptance Fee in respect into another type of Loan, or to roll over each such B/A Equivalent Note. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each Note into another B/A Equivalent Note purchased by such Lender shall be set off against Note, all in accordance with the Discount Proceeds payable by such Lender under corresponding provisions of this Section 2.22(g)Agreement which relate to B/As.
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before the maturity date of such B/As, the applicable The Canadian Borrower shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on the maturity date of such B/As. If such Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face amount of such B/A as provided in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such Canadian Borrower to make such payment.
(i) Each Canadian Borrower waives Borrowers waive presentment for payment and any other defense, defense to payment of any amounts due to a Canadian Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Canadian Lender in its own right and each the Canadian Borrower agrees Borrowers agree not to claim any days of grace if such Canadian Lender as holder sues such the Canadian Borrower Borrowers on the B/A for payment of the amount payable by such the Canadian Borrower Borrowers thereunder. On the specified maturity date of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower Borrowers shall jointly and severally pay, through the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and after such payment, such the Canadian Borrower Borrowers 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.
(ji) If a Canadian Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant under Section 9.04(f)9.4, then in respect of any B/A Borrowing, a portion thereof may, at the option of such Canadian Lender, be by way of Bankers’ Acceptance B/A accepted by such participant. In such event, the applicable Canadian Borrower Borrowers shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking B/A indemnity in favor of such participant for delivery to such participant.
(j) Notwithstanding anything herein to the contrary, no B/A may be prepaid prior to the maturity date thereof, except as provided in Article VII(s)(iii).
Appears in 1 contract
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each Canadian the Borrower may request a Canadian Revolving Borrowing by presenting drafts for acceptance and and, if applicable, purchase as B/As by the Canadian Revolving Lenders.
(b) To facilitate No Contract Period with respect to a B/A Borrowingsto be accepted and, each if applicable, purchased as an Advance shall extend beyond the Revolving Maturity Date or the Term Maturity Date, as applicable. All B/A Borrowings shall be denominated in Canadian Dollars.
(c) To facilitate availment of the B/A Advances, the Borrower hereby appoints each Canadian Revolving 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 Lender, blank forms of B/As in the form requested by such Lender. In this respect, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Canadian The Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender shall bind such Canadian the Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Canadian the Borrower. Each Canadian Revolving Lender is hereby authorized 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 B/As required to be accepted and purchased by such 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 Lender or its officers, employees, agents or representativesrepresentatives as determined by a court of competent jurisdiction by final and nonappealable judgment. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iiiii) accepted and purchased by it hereunder and (iviii) canceled at their respective maturities. Each Canadian Revolving 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 that which apply to such Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either Canadian the Borrower, a Canadian Revolving Lender shall cancel all forms of B/A that which have been pre-signed or pre-endorsed on behalf of such Canadian the Borrower and that which are held by such Lender and are not required to be issued in accordance with such Canadian the Borrower’s irrevocable notice. At the discretion of a Lender, B/As 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 and the Depository Bills and Notes Act (Canada). All Depository Bills so issued shall be governed by the provisions of this Section 2.18.
(cd) Drafts of a Canadian the Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.222.18. Notwithstanding that any person Person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian Revolving Lender of the Lenders or applicable Canadian the Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on the applicable Canadian Borrower.
(de) Promptly following receipt of a Borrowing Request Notice of Borrowing, continuation or notice of rollover pursuant to Section 2.03 by way Conversion of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by a Canadian Revolving Lender shall be a whole in an integral multiple of C $100,000, C$100,000 and such face amount shall be in the Canadian Revolving Lenders’ pro rata portions each Lender’s Pro Rata Share of such Canadian Revolving Borrowing, and each such Borrowing shall be no less than C$500,000; provided provided, that the Canadian Administrative Agent may may, in its sole discretion discretion, increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $C$100,000.
(ef) Upon acceptance The Borrower may specify in a Notice of a Borrowing or Conversion or continuation pursuant to Section 2.4(a) or Section 2.4(b), respectively, that it desires that any B/A As requested by a Canadian Revolving Lendersuch notice be purchased by the Lenders, such Lender in which case the Lenders shall purchase, or arrange the purchase of, each B/A from the applicable Canadian Borrower at the Discount Rate for such Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian such Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such Canadian the Borrower to a Canadian Revolving Lender under this Section 2.22(e2.8(d) in respect of each B/A accepted by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(e)2.18.
(fg) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(gh) If a Canadian Revolving Lender notifies the Canadian Administrative Agent in writing that it is unable or unwilling to accept Bankers’ Acceptances, such Lender will, instead of accepting and and, if applicable, purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period make an advance (a “B/A Equivalent NoteAdvance”), in ) to the form of Exhibit K, issued by such Canadian applicable Borrower in the amount and for the same term as the draft that such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect Discount Proceeds of such B/A Equivalent NoteAdvance for the account of the Borrower. The Acceptance Fee payable by Each such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by Advance will bear interest at the same rate that would result if such Lender shall be set off against had accepted (and been paid an Acceptance Fee) and purchased (on a discounted basis at the Discount Proceeds payable by Rate) a Bankers’ Acceptance for the relevant Contract Period (it being the intention of the parties that each such Lender under this Section 2.22(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before Equivalent Advance shall have the maturity date of same economic consequences for the Lenders and the Borrower as the Bankers’ Acceptance which such B/As, the applicable Canadian Borrower A Equivalent Advance replaces). All such interest shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth be paid in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover advance on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on A Equivalent Advance is made, and will be deducted from the maturity date of such B/As. If such Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face principal amount of such B/A as provided Equivalent Advance in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to same manner in which the failure Discount Proceeds of such Canadian Borrower to make such paymenta Bankers’ Acceptance would be deducted from the face amount of the Bankers’ Acceptance.
(i) Each Canadian The Borrower waives presentment for payment and any other defense, defense to payment of any amounts due to a Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Lender in its own right and each Canadian the Borrower agrees not to claim any days of grace if such Lender as holder sues such Canadian the Borrower on the B/A for payment of the amount payable by such Canadian the Borrower thereunder. On the specified maturity date last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through either pay the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A (subject to Section 2.18(j) below and Section 2.5(b)) or provide for a continuation as contemplated by Section 2.4(b), and after such payment, such Canadian the 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.
(j) If a Canadian Revolving Except as required by any Lender grants a participation in a portion upon the occurrence of its rights under this Agreement an Event of Default, no B/A Advance may be repaid by the Borrower prior to a participant under Section 9.04(f)the expiry date of the Contract Period applicable to such B/A Advance; provided, then in respect of however, that any B/A Borrowing, a portion thereof may, at the option of such Lender, or B/A Equivalent Advance may be by way of Bankers’ Acceptance accepted by such participant. In such event, the applicable Canadian Borrower defeased as provided in Section 2.5(b)(ii) and shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute be defeased as required in Section 2.5(c) and deliver a form of Bankers’ Acceptance undertaking in favor of such participant for delivery to such participant(d).
Appears in 1 contract
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each Canadian Borrower SSC Canada may request a Revolving (Canadian) Credit Borrowing denominated in Canadian Revolving Borrowing Dollars by presenting drafts for acceptance and and, if applicable, purchase as B/As A's by the Canadian Revolving (Canadian) Lenders.
(b) To facilitate No Contract Period with respect to a B/A Borrowingsto be accepted and, each if applicable, purchased as a Revolving (Canadian) Loan shall extend beyond the Revolving Credit Maturity Date. All B/A's and B/A Loans shall be denominated in Canadian Borrower Dollars.
(c) To facilitate availment of B/A Loans, SSC Canada hereby appoints each Canadian Revolving (Canadian) Lender as its attorney to sign and endorse on its behalfbehalf (in accordance with a notice of Borrowing relating to a B/A Loan pursuant to SECTION 2.03 or SECTION 2.10), in handwriting or by facsimile or mechanical signature as and when deemed necessary by such Revolving (Canadian) Lender, blank forms of B/As A's in the form requested by such Revolving (Canadian) Lender. In this respect, it is each Canadian Revolving (Canadian) Lender’s 's responsibility to 66 maintain an adequate supply of blank forms of B/As A's for acceptance under this Agreement. Each Canadian Borrower SSC Canada recognizes and agrees that all B/As A's signed and/or endorsed on its behalf by a Canadian Revolving (Canadian) Lender on behalf of SSC Canada shall bind such Canadian Borrower SSC Canada as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Canadian BorrowerSSC Canada. Each Canadian Revolving (Canadian) Lender is hereby authorized (in accordance with a notice of Borrowing relating to a B/A Loan) to issue such B/As A's endorsed in blank in such face amounts as may be determined by such Revolving (Canadian) Lender; provided PROVIDED that the aggregate amount thereof is equal to the aggregate amount of B/As A's required to be accepted and purchased by such Revolving (Canadian) Lender. No Canadian Revolving (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 for the gross negligence or willful wilful misconduct of such Revolving (Canadian) Lender or its officers, employees, agents or representatives. Each Canadian Revolving (Canadian) Lender shall maintain a record record, which shall be made available to SSC Canada upon its request, with respect to B/As A's (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder hereunder, and (iv) canceled at their respective maturities. Each Canadian Revolving 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 that apply to such Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either Canadian BorrowerSSC Canada, a Canadian Revolving (Canadian) Lender shall cancel all forms of B/A that A's which have been pre-signed or pre-endorsed on behalf of such Canadian Borrower SSC Canada and that are held by such Revolving (Canadian) Lender and are not required to be issued in accordance with such Canadian Borrower’s SSC Canada's irrevocable notice. Alternatively, SSC Canada agrees that, at the request of the Canadian Administrative Agent, SSC Canada shall deliver to the 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.
(cd) Drafts of a Canadian Borrower SSC Canada to be accepted as B/As A's hereunder shall be signed as set forth in this Section 2.22SECTION 2.23. Notwithstanding that any person Person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian Revolving (Canadian) Lender or applicable Canadian Borrower SSC Canada 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 applicable Canadian BorrowerSSC Canada.
(de) Promptly following the receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 borrowing specifying a Revolving (Canadian) Credit Borrowing by way of B/AsA's, the Canadian Administrative Agent shall so advise the Canadian Revolving (Canadian) Lenders and shall advise each Canadian Revolving (Canadian) Lender of the aggregate face amount of the B/As A's to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving (Canadian) Lenders). The In the case of Revolving (Canadian) Loans comprised of B/A Loans, the aggregate face amount of the B/As A's to be accepted by a Canadian Revolving (Canadian) Lender shall be in a minimum aggregate amount of Cdn.$100,000 and shall be a whole multiple of C $100,000Cdn.$100,000, and such face amount shall be in the Canadian Revolving (Canadian) Lenders’ pro rata ' PRO RATA portions of such Canadian Revolving (Canadian) Borrowing; provided , PROVIDED that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Revolving (Canadian) Lender’s 's portion of such B/A Borrowing Loan to the nearest C $100,000Cdn.$100,000 without reducing the aggregate Revolving (Canadian) Credit Commitments.
(ef) Upon SSC Canada may specify in a notice of borrowing pursuant to SECTION 2.03 or SECTION 2.10 that it desires that any B/A's requested by such notice of borrowing be purchased by the Revolving (Canadian) Lenders, in which case the Revolving (Canadian) Lenders shall, upon acceptance of a B/A by a Canadian Revolving (Canadian) Lender, such Lender shall purchase, or arrange for the purchase of, each B/A from the applicable Canadian Borrower SSC Canada at the Discount Rate for such Revolving (Canadian) Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian BorrowerSSC Canada. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such Canadian Borrower SSC Canada to a Canadian Revolving (Canadian) Lender under this Section 2.22(eSECTION 2.06(d) in respect of each B/A accepted by such Revolving (Canadian) Lender shall be set off against and deducted from the Discount Proceeds payable by such Revolving (Canadian) Lender under this Section 2.22(e)SECTION 2.23.
(fg) Each Canadian Revolving (Canadian) Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As A's accepted and purchased by it.
(gh) If a Canadian Revolving (Canadian) Lender is not a chartered bank under the Bank Act (Canada) or if a Revolving (Canadian) Lender notifies the Canadian Administrative Agent in writing that it is otherwise unable or unwilling to accept Bankers’ ' Acceptances, such Revolving (Canadian) Lender will, instead of accepting and and, if applicable, purchasing Bankers’ ' Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period make an advance (a “"B/A Equivalent Note”), in the form of Exhibit K, issued by such Canadian Borrower EQUIVALENT LOAN") to SSC Canada in the amount and for the same term as the draft that such Revolving (Canadian) Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Revolving (Canadian) Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect Discount Proceeds of such B/A Equivalent NoteLoan for the account of SSC Canada. The Acceptance Fee payable by Each such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note Loan will bear interest at the same rate that would result if such Revolving (Canadian) Lender had accepted (and been paid an Acceptance Fee) and purchased by such Lender shall be set off against (on a discounted basis at the Discount Proceeds payable by Rate) a Bankers' Acceptance for the relevant Contract Period (it being the intention of the parties that each such Lender under this Section 2.22(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before Equivalent Loan shall have the maturity date of same economic consequences for the Revolving (Canadian) Lenders and SSC Canada as the Bankers' Acceptance which such B/As, the applicable Canadian Borrower A Equivalent Loan replaces). All such interest shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth be paid in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover advance on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on A Equivalent Loan is made, and will be deducted from the maturity date of such B/As. If such Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face principal amount of such B/A as provided Equivalent Loan in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to same manner in which the failure Discount Proceeds of such Canadian Borrower to make such paymenta Bankers' Acceptance would be deducted from the face amount of the Bankers' Acceptance.
(i) Each Canadian Borrower SSC Canada waives presentment for payment and any other defense, defense to payment of any amounts due to a Revolving (Canadian) Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Revolving (Canadian) Lender in its own right right, and each Canadian Borrower SSC Canada agrees not to claim any days of grace if such Lender Revolving (Canadian) Lender, as holder holder, claims payment from or sues such Canadian Borrower SSC Canada on the B/A for payment of the amount payable by such Canadian Borrower SSC Canada thereunder. On the specified maturity date last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, SSC Canada shall pay the applicable Canadian Borrower shall pay, through the Canadian Administrative Agent, the Canadian Revolving (Canadian) Lender that has accepted and purchased such a B/A or advanced a B/A Equivalent Loan the full face amount of such B/A and or B/A Equivalent Loan, as the case may be, and, after such payment, such Canadian Borrower SSC Canada shall have no further liability in respect of such B/A and such Revolving (Canadian) Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A.
(j) If a Canadian Except as required by any Revolving (Canadian) Lender grants a participation in a portion upon the occurrence of its rights under this Agreement an Event of Default, no B/A Loan may be repaid by SSC Canada prior to a participant under Section 9.04(f)the expiry date of the Contract Period applicable to such B/A Loan; PROVIDED, then in respect of HOWEVER, that any B/A Borrowing, a portion thereof may, at Loan may be defeased as provided in the option of such Lender, be by way of Bankers’ Acceptance accepted by such participant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor of such participant for delivery proviso to such participantSECTION 2.12(a).
Appears in 1 contract
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each Canadian the Borrower may request a Canadian Revolving Borrowing by presenting drafts for acceptance and purchase as B/As by the Canadian Revolving Lenders.
(b) No Contract Period with respect to a B/A to be accepted and purchased under the Revolving Credit shall extend beyond the Maturity Date.
(c) To facilitate availment of B/A Borrowings, each Canadian the Borrower hereby appoints each Canadian Revolving Lender as its attorney to sign and endorse on its behalfbehalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by such Lender, blank forms of B/As in the form requested by such Lender. In this respect, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Canadian The Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender on behalf of the Borrower shall bind such Canadian the Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Canadian the Borrower. Each Canadian Revolving Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by such Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by such 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 wilful misconduct of such the Lender or its officers, employees, agents agent or representatives. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder hereunder, and (iv) canceled cancelled at their respective maturities. Each Canadian Revolving 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 that apply to such Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either Canadian the Borrower, a Canadian Revolving Lender shall cancel all forms of B/A that which have been pre-signed or pre-endorsed on behalf of such Canadian the Borrower and that which are held by such Lender and are not required to be issued in accordance with any Borrowing Request made by the Borrower in respect of a B/A Borrowing. Alternatively, the Borrower agrees that, at the request of the Administrative Agent, the Borrower shall deliver to the Administrative Agent a “depository note” which complies with the requirements of the Depository Bills and Notes Act (Canada), and consents to the deposit of any such depository note in the book-based debt clearance system maintained by the Canadian Borrower’s irrevocable noticeDepository for Securities.
(cd) Drafts of a Canadian the Borrower to be accepted as B/As hereunder shall be signed as set forth out in this Section 2.222.11. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian Revolving Lender or applicable Canadian the Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on the applicable Canadian Borrower.
(de) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 specifying a Borrowing by way of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The In the case of B/A Borrowings under the Revolving Credit, the aggregate face amount of the B/As to be accepted by the Lenders shall be in a Canadian Revolving Lender minimum aggregate amount of Cdn.$5,000,000 and shall be a whole multiple of C $100,000Cdn.$100,000, and such face amount shall be in the Canadian Revolving Credit Lenders’ pro rata portions of such Canadian Revolving the Borrowing; , provided that the Canadian Administrative Agent may may, in its sole discretion discretion, increase or reduce any Canadian Revolving Credit Lender’s portion of such B/A Borrowing to the nearest C $100,000Cdn.$1,000 provided that no Revolving Lender’s Revolving Credit Commitment shall be thereby exceeded.
(ef) Upon acceptance of a B/A by a Canadian Revolving Lender, such Lender shall purchase, or arrange for the purchase of, each B/A from the applicable Canadian Borrower at the Discount Rate for such Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such Canadian the Borrower to a Canadian Revolving Lender under this Section 2.22(e) 2.5 in respect of each B/A accepted by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(e)2.11.
(fg) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(gh) If a Canadian Revolving Lender is not a chartered bank or Schedule III bank under the Bank Act (Canada) or if a Lender notifies the Canadian Administrative Agent in writing that it is otherwise unable or unwilling to accept Bankers’ Acceptances, such Lender will, instead of accepting and purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower make a note that does not bear interest during the Contract Period Loan (a “B/A Equivalent NoteLoan”), in ) to the form of Exhibit K, issued by such Canadian Borrower in the amount and for the same term as the draft that which such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect Discount Proceeds of such B/A Equivalent NoteLoan for the account of the relevant Borrower. The Acceptance Fee payable by Each such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by Loan will bear interest at the same rate which would result if such Lender had accepted (and been paid an Acceptance Fee) and purchased (on a discounted basis) 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 Borrower as the Bankers’ Acceptance which such B/A Equivalent Loan replaces). All such interest shall be set off against paid in advance on the Discount Proceeds payable by date such Lender under B/A Loan is made, and will be deducted from the principal amount of such B/A Equivalent Loan. Subject to repayment requirements, on the last day of the relevant Contract Period for such B/A Equivalent Loan, the relevant Borrower shall be entitled to convert each such B/A Equivalent Loan into another type of Loan, or to roll over each such B/A Equivalent Loan into another B/A Equivalent Loan, all in accordance with the applicable provisions of this Section 2.22(g)Agreement.
(hi) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, 11:00 a.m. two Business Days before the maturity date last day of the Contract Period of such B/AsA Borrowing, the applicable Canadian Borrower shall notify the Canadian Administrative Agent at if the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such Canadian Borrower intends to issue B/As on such maturity date last day of the Contract Period to provide for the payment of such maturing B/AsA Borrowing. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity datelast day of the Contract Period, such Canadian the Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As A Borrowing on the maturity date last day of such B/Asthe Contract Period thereof. If such Canadian the Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, shall be deemed to have been converted on their maturity date the last day of the Contract Period into a Canadian Prime Rate Loan in an amount equal to the face amount of such B/A as provided in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such Canadian Borrower to make such paymentAs.
(ij) Each Canadian The Borrower waives presentment for payment and any other defense, defence to payment of any amounts due to a Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Lender in its own right right, and each Canadian the Borrower agrees not to claim any days of grace if such Lender Lender, as holder holder, sues such Canadian the relevant Borrower on the B/A for payment of the amount payable by such Canadian the Borrower thereunder. On the specified maturity date last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian relevant Borrower shall pay, through pay the Canadian Administrative Agent, Agent for the Canadian Revolving Lender account of the Lenders that has have accepted and purchased such B/A the full face amount of such B/A and and, after such payment, such Canadian the Borrower shall have no further liability in respect of such B/A and such Lender Lenders shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A.
(jk) If a Canadian Revolving Except as required by any Lender grants a participation in a portion upon the occurrence of its rights under this Agreement an Event of Default, no B/A Borrowing may be repaid by the Borrower prior to a participant under Section 9.04(f)the expiry date of the Contract Period applicable to such B/A Borrowing; provided, then in respect of however, that the Borrower may defease any B/A Borrowing, a portion thereof may, at Borrowing by depositing with the option Administrative Agent an amount that is sufficient to repay the full face amount of such Lender, be by way of Bankers’ Acceptance accepted by such participant. In such event, B/A Borrowing on the applicable Canadian Borrower shall upon request expiry date of the Canadian Contract Period applicable to such B/A Borrowing.
(l) If any Event of Default shall occur and be continuing, on the Business Day that the Borrower receives written notice from the Administrative Agent or the Canadian Required Lenders (or, if the maturity of the Loans has been accelerated, including pursuant to Section 2.7, Lenders with B/A Exposure representing greater than 50% of the total applicable B/A Exposure) demanding the deposit of cash collateral pursuant to this Section 2.11(l), the Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Revolving Lender granting Credit Lenders, an amount in cash equal to the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor applicable B/A Exposure as of such participant date; provided that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default described in Section 7.1(h), (i) or (j). Such deposit shall be held by the Administrative Agent as collateral for delivery the payment and performance of the obligations of the Borrower under this Agreement. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Any such deposit shall bear interest for the account of the Borrower at the rate customarily paid by the Administrative Agent for deposits of similar currency, amount and tenor, which interest shall be credited to such participantaccount. Moneys in such account shall be held for the satisfaction of the reimbursement obligations of the Borrower for the B/A Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of Revolving Credit Lenders with B/A Exposure representing greater than 50% of the total applicable B/A Exposure), be applied to satisfy other obligations of the Borrower under this Agreement. If the Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, and all Events of Default shall have been subsequently cured or waived, such amount together with all interest earned thereon (to the extent not applied as aforesaid) shall be returned to the Borrower within three Business Days after all Events of Default have been cured or waived.
Appears in 1 contract
Samples: Supplemental Senior Revolving Facility Credit Agreement (Tim Hortons Inc.)
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each the Canadian Borrower may request a borrowing denominated in Canadian Revolving Borrowing Dollars by presenting drafts for acceptance and purchase as Canadian B/As by the Canadian Revolving Lenders.
(b) To facilitate No Canadian Contract Period with respect to a Canadian B/A Borrowingsshall extend beyond the final payment of the Canadian Term Loans or the Specified Revolving Credit Commitment Termination Date, each as applicable.
(c) To facilitate availment of the borrowings by way of Canadian B/As, the Canadian Borrower hereby appoints each Canadian Revolving 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 Canadian B/As substantially in the form requested by such Lenderof Schedule 2.12. In this respect, it is each Canadian Revolving Lender’s 's responsibility to maintain an adequate supply of blank forms of Canadian B/As for acceptance under this Agreement. Each The Canadian Borrower recognizes and agrees that all Canadian B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender shall bind such the Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such the Canadian Borrower. Each 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 Lender; provided that the aggregate amount thereof is equal to the aggregate amount of Canadian B/As required to be accepted and purchased by such Canadian 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 wilful misconduct of such the Canadian Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to Canadian B/As (ia) received by it from the Canadian Agent in blank hereunder, (iib) voided by it for any reason, (iiic) accepted and purchased by it hereunder hereunder, and (ivd) canceled cancelled at their respective maturities. Each Canadian Revolving 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 that which apply to such Canadian Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either the Canadian Borrower at the applicable Canadian Borrower’s 's expense upon request. On request by or on behalf of either the Canadian Borrower, a Canadian Revolving Lender shall cancel all forms of Canadian B/A that which have been pre-signed or pre-endorsed on behalf of such the Canadian Borrower and that which are held by such the said Canadian Lender and are not required to be issued in accordance with such the Canadian Borrower’s 's irrevocable notice.
(cd) Drafts of a the Canadian Borrower to be accepted as Canadian B/As hereunder shall be signed as set forth in this Section 2.22subsection 2.12. Notwithstanding that any person Person whose signature appears on any Canadian B/A may no longer be an authorized signatory for any of the Canadian Revolving Lender Lenders or applicable the Canadian Borrower at the date of issuance of a Canadian 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 Canadian B/A so signed shall be binding on the applicable Canadian Borrower.. 63 57
(de) Promptly following receipt of a Borrowing Request or notice of borrowing, rollover pursuant to Section 2.03 or conversion in such form as shall be reasonably approved by the Canadian Agent by way of Canadian B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the Canadian B/As to be accepted by it and the applicable Canadian Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the Canadian B/As to be accepted by a Canadian Revolving Lender shall be a whole multiple of C $100,000, and such face amount shall be in determined by the Canadian Revolving Lenders’ pro rata portions Agent by reference to such Canadian Lender's Ratable Portion of such Canadian Revolving Borrowing; provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $100,000Loan.
(ef) Upon acceptance of a Canadian B/A by a Canadian Revolving Lender, such Canadian Lender shall purchase, or arrange the purchase of, each Canadian B/A from the applicable 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 the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such the Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e) subsection 4.1 in respect of each Canadian B/A accepted by such Canadian Lender shall be set off against the Discount Proceeds payable by such Canadian Lender under this Section 2.22(e)subsection 2.12.
(fg) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all Canadian B/As accepted and purchased by it.
(g) If a Canadian Revolving Lender notifies the Canadian Administrative Agent in writing that it is unable or unwilling to accept Bankers’ Acceptances, such Lender will, instead of accepting and purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period (a “B/A Equivalent Note”), in the form of Exhibit K, issued by such Canadian Borrower in the amount and for the same term as the draft that such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect of such B/A Equivalent Note. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(g).
(h) With respect to each Loan which is outstanding hereunder by way of Canadian B/A BorrowingAs, at or before 10:00 a.m., Toronto time, 11:00 a.m. two (2) Business Days before the maturity date of such B/As, the applicable Canadian Borrower shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s 's address set forth in Section 9.01 subsection 12.2 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such the Canadian Borrower intends to issue Canadian B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue Canadian B/As on such maturity date, such the Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on the maturity date of such B/As. If such the Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, shall be deemed to have been converted on their maturity date into a Canadian Prime Base Rate Loan in an amount equal to the face amount of such B/A as provided in Section 2.07 As and such the Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or and any Canadian Revolving Lender due to the failure of such the Canadian Borrower to make such payment.
(i) Each The Canadian Borrower waives presentment for payment and any other defense, defence to payment of any amounts due to a Canadian Lender in respect of a Canadian B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Canadian Lender in its own right and each the Canadian Borrower agrees not to claim any days of grace if such Canadian Lender as holder sues such the Canadian Borrower on the Canadian B/A for payment of the amount payable by such the Canadian Borrower thereunder. On the specified maturity date of a Canadian B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through pay the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such Canadian B/A and after such payment, such the Canadian Borrower shall have no further liability in respect of such Canadian B/A and such 64 58 Canadian Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A.
(j) If a Canadian Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant under Section 9.04(f)Specified Participant, then in respect of any Loans by way of Canadian B/A BorrowingAs, a portion thereof may, at the option of such Canadian Lender, be by way of Bankers’ Acceptance Canadian B/A accepted by such participantSpecified Participant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Canadian Bankers’ ' Acceptance undertaking in favor of such participant Specified Participant for delivery to such participantSpecified Participant.
Appears in 1 contract
Samples: Credit Agreement (Viasystems Inc)
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each the Canadian Borrower may request a borrowing denominated in Canadian Revolving Borrowing Dollars by presenting drafts for acceptance and purchase as Canadian B/As by the Canadian Revolving Lenders.
(b) To facilitate No Canadian Contract Period with respect to a Canadian B/A Borrowingsshall extend beyond the Specified Revolving Credit Commitment Termination Date.
(c) To facilitate availment of the borrowings by way of Canadian B/As, each the Canadian Borrower hereby appoints each Canadian Revolving 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 Canadian B/As substantially in the form requested by such Lenderof Schedule 2.12. In this respect, it is each Canadian Revolving Lender’s 's responsibility to maintain an adequate supply of blank forms of Canadian B/As for acceptance under this Agreement. Each The Canadian Borrower recognizes and agrees that all Canadian B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender shall bind such the Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such the Canadian Borrower. Each 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 Lender; provided that the aggregate amount thereof is equal to the aggregate amount of Canadian B/As required to be accepted and purchased by such Canadian 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 wilful misconduct of such the Canadian Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to Canadian B/As (ia) received by it from the Canadian Agent in blank hereunder, (iib) voided by it for any reason, (iiic) accepted and purchased by it hereunder hereunder, and (ivd) canceled cancelled at their respective maturities. Each Canadian Revolving 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 that which apply to such Canadian Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either the Canadian Borrower at the applicable Canadian Borrower’s 's expense upon request. On request by or on behalf of either the Canadian Borrower, a Canadian Revolving Lender shall cancel all forms of Canadian B/A that which have been pre-signed or pre-endorsed on behalf of such the Canadian Borrower and that which are held by such the said Canadian Lender and are not required to be issued in accordance with such the Canadian Borrower’s 's irrevocable notice.
(cd) Drafts of a the Canadian Borrower to be accepted as Canadian B/As hereunder shall be signed as set forth in this Section 2.22subsection 2.12. Notwithstanding that any person Person whose signature appears on any Canadian B/A may no longer be an authorized signatory for any of the Canadian Revolving Lender Lenders or applicable the Canadian Borrower at the date of issuance of a Canadian B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had 60 54 remained in force at the time of such issuance and any such Canadian B/A so signed shall be binding on the applicable Canadian Borrower.
(de) Promptly following receipt of a Borrowing Request or notice of borrowing, rollover pursuant to Section 2.03 or conversion in such form as shall be reasonably approved by the Canadian Agent by way of Canadian B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the Canadian B/As to be accepted by it and the applicable Canadian Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the Canadian B/As to be accepted by a Canadian Revolving Lender shall be a whole multiple of C $100,000, and such face amount shall be in determined by the Canadian Revolving Lenders’ pro rata portions Agent by reference to such Canadian Lender's Ratable Portion of such Canadian Revolving Borrowing; provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $100,000Loan.
(ef) Upon acceptance of a Canadian B/A by a Canadian Revolving Lender, such Canadian Lender shall purchase, or arrange the purchase of, each Canadian B/A from the applicable 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 the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such the Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e) subsection 4.1 in respect of each Canadian B/A accepted by such Canadian Lender shall be set off against the Discount Proceeds payable by such Canadian Lender under this Section 2.22(e)subsection 2.12.
(fg) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all Canadian B/As accepted and purchased by it.
(g) If a Canadian Revolving Lender notifies the Canadian Administrative Agent in writing that it is unable or unwilling to accept Bankers’ Acceptances, such Lender will, instead of accepting and purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period (a “B/A Equivalent Note”), in the form of Exhibit K, issued by such Canadian Borrower in the amount and for the same term as the draft that such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect of such B/A Equivalent Note. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(g).
(h) With respect to each Loan which is outstanding hereunder by way of Canadian B/A BorrowingAs, at or before 10:00 a.m., Toronto time, 11:00 a.m. two (2) Business Days before the maturity date of such B/As, the applicable Canadian Borrower shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s 's address set forth in Section 9.01 subsection 12.2 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such the Canadian Borrower intends to issue Canadian B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue Canadian B/As on such maturity date, such the Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on the maturity date of such B/As. If such the Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, shall be deemed to have been converted on their maturity date into a Canadian Prime Base Rate Loan in an amount equal to the face amount of such B/A as provided in Section 2.07 As and such the Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or and any Canadian Revolving Lender due to the failure of such the Canadian Borrower to make such payment.
(i) Each The Canadian Borrower waives presentment for payment and any other defense, defense to payment of any amounts due to a Canadian Lender in respect of a Canadian B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Canadian Lender in its own right and each the Canadian Borrower agrees not to claim any days of grace if such Canadian Lender as holder sues such the Canadian Borrower on the Canadian B/A for payment of the amount payable by such the Canadian Borrower thereunder. On the specified maturity date of a Canadian B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through pay the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such Canadian B/A and after such payment, such the Canadian Borrower shall have no 61 55 further liability in respect of such Canadian 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) If a Canadian Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant under Section 9.04(f)Specified Participant, then in respect of any Loans by way of Canadian B/A BorrowingAs, a portion thereof may, at the option of such Canadian Lender, be by way of Bankers’ Acceptance Canadian B/A accepted by such participantSpecified Participant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Canadian Bankers’ ' Acceptance undertaking in favor of such participant Specified Participant for delivery to such participantSpecified Participant.
Appears in 1 contract
Samples: Credit Agreement (Viasystems Inc)
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each Canadian Borrower Canco may request a Revolving Credit Borrowing denominated in Canadian Revolving Borrowing Dollars by presenting drafts for acceptance and and, if applicable, purchase as B/As A's by the Canadian Revolving Lenders.
(b) To facilitate No Contract Period with respect to a B/A Borrowingsto be accepted and, each if applicable, purchased as a Revolving Loan shall extend beyond the Revolving Credit Maturity Date. All B/A's and B/A Loans shall be denominated in Canadian Borrower Dollars.
(c) To facilitate availment of B/A Loans, Canco hereby appoints each Canadian Revolving Lender as its attorney to sign and endorse on its behalfbehalf (in accordance with a notice of Borrowing relating to a B/A Loan pursuant to Section 2.03 or Section 2.10), in handwriting or by facsimile or mechanical signature as and when deemed necessary by such Revolving Lender, blank forms of B/As A's in the form requested by such Revolving Lender. In this respect, it is each Canadian Revolving Lender’s 's responsibility to maintain an adequate supply of blank forms of B/As A's for acceptance under this Agreement. Each Canadian Borrower Canco recognizes and agrees that all B/As A's signed and/or endorsed on its behalf by a Canadian Revolving Lender on behalf of Canco shall bind such Canadian Borrower Canco as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Canadian BorrowerCanco. Each Canadian Revolving Lender is hereby authorized (in accordance with a notice of Borrowing relating to a B/A Loan) to issue such B/As A's 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 A's required to be accepted and purchased by such 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 wilful misconduct of such the Revolving Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record record, which shall be made available to Canco upon its request, with respect to B/As A's (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder hereunder, and (iv) canceled at their respective maturities. Each Canadian Revolving 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 that apply to such Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either Canadian BorrowerCanco, a Canadian Revolving Lender shall cancel all forms of B/A that A's which have been pre-signed or pre-pre- endorsed on behalf of such Canadian Borrower Canco and that are held by such Revolving Lender and are not required to be issued in accordance with such Canadian Borrower’s Canco's irrevocable notice. Alternatively, Canco agrees that, at the request of the Canadian Administrative Agent, Canco shall deliver to the 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.
(cd) Drafts of a Canadian Borrower Canco to be accepted as B/As A's hereunder shall be signed as set forth in this Section 2.22. Notwithstanding that any person Person whose signature ------------ appears on any B/A may no longer be an authorized signatory for any Canadian Revolving Lender or applicable Canadian Borrower Canco 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 applicable Canadian BorrowerCanco.
(de) Promptly following the receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 borrowing specifying a Revolving Credit Borrowing by way of B/AsA's, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As A's to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The In the case of Revolving Loans comprised of B/A Loans, the aggregate face amount of the B/As A's to be accepted by a Canadian Revolving Lender shall be in a minimum aggregate amount of Cdn.$100,000 and shall be a whole multiple of C $100,000Cdn.$100,000, and such face amount shall be in the Canadian Revolving Lenders’ ' pro rata portions of such Canadian Revolving Borrowing; , provided that the Canadian Administrative Agent may in its sole -------- discretion increase or reduce any Canadian Revolving Lender’s 's portion of such B/A Borrowing Loan to the nearest C $100,000.
(e) Upon acceptance of a B/A by a Canadian Cdn.$100,000 without reducing the aggregate Revolving Lender, such Lender shall purchase, or arrange the purchase of, each B/A from the applicable Canadian Borrower at the Discount Rate for such Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e) in respect of each B/A accepted by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(e)Credit Commitments.
(f) Each Canadian Revolving Lender Canco may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(g) If a Canadian Revolving Lender notifies the Canadian Administrative Agent specify in writing that it is unable or unwilling to accept Bankers’ Acceptances, such Lender will, instead of accepting and purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period (a “B/A Equivalent Note”), in the form of Exhibit K, issued by such Canadian Borrower in the amount and for the same term as the draft that such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect of such B/A Equivalent Note. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before the maturity date of such B/As, the applicable Canadian Borrower shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on the maturity date of such B/As. If such Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face amount of such B/A as provided in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such Canadian Borrower to make such payment.
(i) Each Canadian Borrower waives presentment for payment and any other defense, in respect of a B/A accepted and purchased by it borrowing pursuant to this Agreement, that might exist solely by reason of such B/A being held, at the maturity thereof, by such Lender in its own right and each Canadian Borrower agrees not to claim any days of grace if such Lender as holder sues such Canadian Borrower on the B/A for payment of the amount payable by such Canadian Borrower thereunder. On the specified maturity date of a B/A, Section 2.03 or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and after such payment, such 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.
(j) If a Canadian Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant under Section 9.04(f), then in respect of any B/A Borrowing, a portion thereof may, at the option of such Lender, be by way of Bankers’ Acceptance accepted by such participant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor of such participant for delivery to such participant.------------ Section
Appears in 1 contract
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each Canadian the Borrower may request a Canadian Revolving Borrowing by presenting drafts for acceptance and purchase as B/As by the Canadian Revolving Lenders.
(b) No Contract Period with respect to a B/A to be accepted and purchased under the Credit shall extend beyond the Maturity Date.
(c) To facilitate availment of B/A Borrowings, each Canadian the Borrower hereby appoints each Canadian Revolving Lender as its attorney to sign and endorse on its behalfbehalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by such Lender, blank forms of B/As in the form requested by such Lender. In this respect, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Canadian The Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender on behalf of the Borrower shall bind such Canadian the Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Canadian the Borrower. Each Canadian Revolving Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by such Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by such 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 wilful misconduct of such the Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder hereunder, and (iv) canceled cancelled at their respective maturities. Each Canadian Revolving 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 that apply to such Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either Canadian the Borrower, a Canadian Revolving Lender shall cancel all forms of B/A that which have been pre-signed or pre-endorsed on behalf of such Canadian the Borrower and that which are held by such Lender and are not required to be issued in accordance with such Canadian the Borrower’s irrevocable notice. Alternatively, the Borrower agrees that, at the request of the Administrative Agent, the Borrower shall deliver to the Administrative Agent a “depository note” which complies with the requirements of the Depository Bills and Notes Act (Canada), and consents to the deposit of any such depository note in the book-based debt clearance system maintained by the Canadian Depository for Securities.
(cd) Drafts of a Canadian the Borrower to be accepted as B/As hereunder shall be signed as set forth out in this Section 2.222.11. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian Revolving Lender or applicable Canadian the Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on the applicable Canadian Borrower.
(de) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 specifying a Borrowing by way of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by the Lenders shall be in a Canadian Revolving Lender minimum aggregate amount of Cdn.$500,000 and shall be a whole multiple of C $100,000Cdn.$100,000, and such face amount shall be in the Canadian Revolving Lenders’ pro rata portions of such Canadian Revolving Borrowing; , provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $100,000Cdn.$100,000 without reducing the overall Commitments.
(ef) Upon acceptance of a B/A by a Canadian Revolving Lender, such Lender shall purchase, or arrange for the purchase of, each B/A from the applicable Canadian Borrower at the Discount Rate for such Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such Canadian the Borrower to a Canadian Revolving Lender under this Section 2.22(e) 2.5 in respect of each B/A accepted by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(e)2.11.
(fg) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(gh) If a Canadian Revolving Lender is not a chartered bank under the Bank Act (Canada) or if a Lender notifies the Canadian Administrative Agent in writing that it is otherwise unable or unwilling to accept Bankers’ Acceptances, such Lender will, instead of accepting and purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower make a note that does not bear interest during the Contract Period Loan (a “B/A Equivalent NoteLoan”), in ) to the form of Exhibit K, issued by such Canadian Borrower in the amount and for the same term as the draft that which such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect Discount Proceeds of such B/A Equivalent NoteLoan for the account of the Borrower. The Acceptance Fee payable by Each such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by Loan will bear interest at the same rate which would result if such Lender had accepted (and been paid an Acceptance Fee) and purchased (on a discounted basis) 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 Borrower as the Bankers’ Acceptance which such B/A Equivalent Loan replaces). All such interest shall be set off against 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 payable by of a Bankers’ Acceptance would be deducted from the face amount of the Bankers’ Acceptance. Subject to repayment requirements, on the last day of the relevant Contract Period for such Lender under B/A Equivalent Loan, the Borrower shall be entitled to convert each such B/A Equivalent Loan into another type of Loan, or to roll over each such B/A Equivalent Loan into another B/A Equivalent Loan, all in accordance with the applicable provisions of this Section 2.22(g)Agreement.
(hi) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before the maturity date last day of the Contract Period of such B/AsA Borrowing, the applicable Canadian Borrower shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same daywriting, if such Canadian the Borrower intends to issue B/As on such maturity date last day of the Contract Period to provide for the payment of such maturing B/AsA Borrowing. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity datelast day of the Contract Period, such Canadian the Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As A Borrowing on the maturity date last day of such B/Asthe Contract Period of thereof. If such Canadian the Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, shall be deemed to have been converted on their maturity date the last day of the Contract Period into a Canadian Prime Rate Loan in an amount equal to the face amount of such B/A as provided in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such Canadian Borrower to make such paymentAs.
(ij) Each Canadian The Borrower waives presentment for payment and any other defense, defence to payment of any amounts due to a Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Lender in its own right right, and each Canadian the Borrower agrees not to claim any days of grace if such Lender Lender, as holder holder, sues such Canadian the Borrower on the B/A for payment of the amount payable by such Canadian the Borrower thereunder. On the specified maturity date last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through pay the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and and, after such payment, such Canadian the 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.
(jk) If a Canadian Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant Participant under Section 9.04(f9.4(e), then then, in respect of any B/A Borrowing, a portion thereof may, at the option of such Lender, be by way of Bankers’ Acceptance accepted by such participantParticipant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor favour of such participant Participant for delivery to such participant.
(l) Except as required by any Lender upon the occurrence of an Event of Default, no B/A Borrowing may be repaid by the Borrower prior to the expiry date of the Contract Period applicable to such B/A Borrowing; provided, however, that the Borrower may defease any B/A Borrowing by depositing with the Administrative Agent an amount that is sufficient to repay such B/A Borrowing on the expiry date of the Contract Period applicable to such B/A Borrowing.
Appears in 1 contract
Samples: Credit Agreement (Dana Corp)
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each Canadian the Borrower may request a Canadian Revolving B/A Borrowing by presenting drafts for acceptance and purchase as B/As by the Canadian Revolving Lenders.
(b) No Contract Period with respect to a B/A Borrowing shall extend beyond the Maturity Date.
(c) To facilitate the availment of B/A Borrowings, each Canadian the Borrower hereby appoints each Canadian Revolving Lender as its attorney to sign and endorse on its behalfbehalf (in accordance with a Notice of Borrowing/Continuation/Conversion relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by such Lender, blank forms of B/As in the form requested by such Lender. In this respect, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Canadian The Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender on behalf of the Borrower shall bind such Canadian the Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Canadian the Borrower. Each Canadian Revolving Lender is hereby authorized (in accordance with a Notice of Borrowing/Continuation/Conversion relating to a B/A Borrowing) 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 B/As required to be accepted and purchased by such 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 wilful misconduct of such the Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder hereunder, and (iv) canceled cancelled at their respective maturities. Each Canadian Revolving 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 that apply to such Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either Canadian the Borrower, a Canadian Revolving Lender shall cancel all forms of B/A that which have been pre-signed or pre-endorsed on behalf of such Canadian the Borrower and that which are held by such Lender and are not required to be issued in accordance with such Canadian the Borrower’s irrevocable notice. Alternatively, the Borrower agrees that, at the request of the Administrative Agent, the Borrower shall deliver to the Administrative Agent a “depository note” which complies with the requirements of the Depository Bills and Notes Act (Canada), and consents to the deposit of any such depository note in the book-based debt clearance system maintained by the Canadian Depository for Securities.
(cd) Drafts of a Canadian the Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.222.7. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian Revolving Lender or applicable Canadian the Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on the applicable Canadian Borrower.
(de) Promptly following receipt of a Notice of Borrowing/Continuation/Conversion specifying a Borrowing Request or notice of rollover pursuant to Section 2.03 by way of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by the Lenders shall be in a Canadian Revolving Lender minimum aggregate amount of Cdn.$5,000,000 and shall be a whole multiple of C $100,000Cdn.$500,000, and such face amount shall be in the Canadian Revolving Lenders’ pro rata portions of such Canadian Revolving Borrowing; Loan, provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $100,000Cdn.$100,000 without affecting the aggregate Loan exposure of any Lender.
(ef) Upon acceptance of a B/A by a Canadian Revolving Lender, such Lender shall purchase, or arrange for the purchase of, each B/A from the applicable Canadian Borrower at the Discount Rate for such Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such Canadian the Borrower to a Canadian Revolving Lender under this Section 2.22(e2.3(b) in respect of each B/A accepted by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(e)2.7.
(fg) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(gh) If a Canadian Revolving Lender is not a chartered bank under the Bank Act (Canada) or if a Lender notifies the Canadian Administrative Agent in writing that it is otherwise unable or unwilling to accept Bankers’ Banker’s Acceptances, such Lender will, instead of accepting and purchasing Bankers’ Banker’s Acceptances, purchase from the applicable Canadian Borrower make a note that does not bear interest during the Contract Period Loan (a “B/A Equivalent NoteLoan”), in ) to the form of Exhibit K, issued by such Canadian Borrower in the amount and for the same term as the draft that which such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect Discount Proceeds of such B/A Equivalent NoteLoan for the account of the Borrower. The Acceptance Fee payable by Each such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by Loan will bear interest at the same rate which would result if such Lender had accepted (and been paid an Acceptance Fee) and purchased (on a discounted basis) a Banker’s 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 Borrower as the Banker’s Acceptance which such B/A Equivalent Loan replaces). All such interest shall be set off against 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 payable by of a Banker’s Acceptance would be deducted from the face amount of the Banker’s Acceptance. Subject to repayment requirements, on the last day of the relevant Contract Period for such Lender under B/A Equivalent Loan, the Borrower shall be entitled to convert each such B/A Equivalent Loan into another Type of Loan, or to roll over each such B/A Equivalent Loan into another B/A Equivalent Loan, all in accordance with the applicable provisions of this Section 2.22(g)Agreement.
(hi) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, a.m. two Business Days before the maturity date last day of the Contract Period of such B/AsA (or, as applicable, such B/A Equivalent Loan), the applicable Canadian Borrower shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice written Notice of rollover Borrowing/Continuation/Conversion by 12:00 noon on the same day, if such Canadian the Borrower intends to issue B/As or roll over maturing B/A Equivalent Loans, as applicable, on such maturity date last day of the Contract Period to provide for the payment of such maturing B/AsA (or, as applicable, such B/A Equivalent Loan). If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As or roll over maturing B/As or B/A Equivalent Loans, as applicable, on such maturity datelast day of the Contract Period, such Canadian the Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As (or, as applicable, such B/A Equivalent Loans) on the maturity date last day of the Contract Period of such B/AsAs or B/A Equivalent Loans. If such Canadian the Borrower fails to make such payment, such maturing B/As shall(or, subject to satisfaction of the conditions set forth in Section 4.02as applicable, such B/A Equivalent Loans) shall be deemed to have been converted on their maturity date the last day of the Contract Period into a Canadian Prime Rate Loan in an amount equal to the face amount of such B/As or B/A as provided in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such Canadian Borrower to make such paymentEquivalent Loans.
(ij) Each Canadian The Borrower waives presentment for payment and any other defense, defence to payment of any amounts due to a Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Lender in its own right right, and each Canadian the Borrower agrees not to claim any days of grace if such Lender Lender, as holder holder, sues such Canadian the Borrower on the B/A for payment of the amount payable by such Canadian the Borrower thereunder. On the specified maturity date last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through pay the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and and, after such payment, such Canadian the 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.
(jk) If a Canadian Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant Participant under Section 9.04(f9.4(d), then then, in respect of any B/A Borrowing, a portion thereof may, at the option of such Lender, be by way of Bankers’ Acceptance Banker’s Acceptances accepted by such participantParticipant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Banker’s Acceptance undertaking in favor favour of such participant Participant, having terms substantially similar to this Section 2.7, for delivery to such participantParticipant.
(l) Except as required by any Lender upon the occurrence of an Event of Default, no B/A Borrowing may be repaid by the Borrower prior to the expiry date of the Contract Period applicable to such B/A Borrowing; provided, however, that the Borrower may defease any B/A Borrowing by depositing with the Administrative Agent an amount that is sufficient to repay such B/A Borrowing on the expiry date of the Contract Period applicable to such B/A Borrowing.
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Samples: Tranche a Exit Facility Agreement (Microcell Telecommunications Inc)
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each Canadian Borrower may request a Borrowing denominated in Canadian Revolving Borrowing dollars by presenting drafts for acceptance and and, if applicable, purchase as B/As by the Canadian Revolving Lenders.
(b) To facilitate No Contract Period with respect to a B/A Borrowingsto 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, each Canadian Borrower hereby appoints each Canadian Revolving 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. In this respect, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Canadian Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender shall bind such Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Canadian Borrower. Each 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 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 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 Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iiiii) accepted and purchased by it hereunder and (iviii) canceled at their respective maturities. Each Canadian Revolving 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 that which apply to such Canadian Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either the Canadian Borrower, a Canadian Revolving Lender shall cancel all forms of B/A that which have been pre-signed or pre-endorsed on behalf of such a Canadian Borrower and that which are held by such Canadian Lender and are not required to be issued in accordance with such 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.
(cd) Drafts of a 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 Revolving Lender Lenders or the applicable 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 applicable such Canadian Borrower.
(de) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 by way borrowing, continuation or conversion of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by a Canadian Revolving Lender shall be a whole in an integral multiple of C $100,000, C$100,000 and such face amount shall be in the each Canadian Revolving Lenders’ Lender’s pro rata portions portion of such Canadian Revolving Borrowing; provided provided, that the Canadian Administrative Agent may may, in its sole discretion discretion, increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $C$100,000.
(ef) Upon acceptance The applicable Canadian Borrower may specify in a notice of a borrowing or conversion or continuation pursuant to Section 2.03 or Section 2.10, respectively, that it desires that any B/A As requested by a such notice be purchased by the Canadian Revolving LenderLenders, such Lender in which case the Canadian Lenders shall purchase, or arrange the purchase of, each B/A from the applicable such Canadian Borrower at the B/A Discount Rate for such Canadian Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable such Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e) 2.06 in respect of each B/A accepted by such Canadian Lender shall be set off against the Discount Proceeds payable by such Canadian Lender under this Section 2.22(e)2.22.
(fg) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(gh) If a Canadian Revolving Lender notifies the Canadian Administrative Agent in writing that it is unable or unwilling to accept Bankers’ Acceptances, such Canadian Lender will, instead of accepting and and, if applicable, purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period make an advance (a “B/A Equivalent NoteLoan”), in ) to the form of Exhibit K, issued by such applicable Canadian Borrower 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, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Canadian Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect Discount Proceeds of such B/A Equivalent Note. The Acceptance Fee payable by Loan for the account of such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each Borrower. Each such B/A Equivalent Note purchased by Loan will bear interest at the same rate that would result if such Lender shall be set off against had accepted (and been paid an Acceptance Fee) and purchased (on a discounted basis at the Discount Proceeds payable by such Lender under this Section 2.22(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before Discount Rate) a Bankers’ Acceptance for the maturity date relevant Contract Period (it being the intention of the parties that each such B/As, A Equivalent Loan shall have the applicable Canadian Borrower shall notify same economic consequences for the Lenders and the Canadian Administrative Agent at Borrowers as the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of Bankers’ Acceptance which such B/As A Equivalent Loan replaces). All such interest shall be paid in advance on the maturity date of such B/As. If such Canadian Borrower fails to make such paymentA Equivalent Loan is made, such maturing B/As shall, subject to satisfaction of and will be deducted from the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face principal amount of such B/A as provided Equivalent Loan in Section 2.07 the same manner in which the Discount Proceeds of a Bankers’ Acceptance would be deducted from the face amount of the Bankers’ Acceptance. Each B/A Equivalent Loan shall be evidenced by a non-interest bearing promissory note of the Canadian Borrower, denominated in Canadian Dollars, executed and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred delivered by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such applicable Canadian Borrower to make such payment.Canadian Lender, substantially in the form of Exhibit H.
(i) Each Canadian Borrower waives presentment for payment and any other defense, defense to payment of any amounts due to a Canadian Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Canadian Lender in its own right and each Canadian Borrower agrees not to claim any days of grace if such Canadian Lender as holder sues such Canadian Borrower on the B/A for payment of the amount payable by such Canadian Borrower thereunder. On the specified maturity date last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through pay the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and after such payment, such 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) If Except as required by any Canadian Lender upon the occurrence of an Event of Default, no B/A Loan may be repaid by a Canadian Revolving Lender grants a participation in a portion Borrower prior to the expiry date of its rights under this Agreement the Contract Period applicable to a participant under Section 9.04(f)such B/A Loan; provided, then in respect of however, that any B/A BorrowingLoan may be defeased as provided in the proviso to Section 2.11(a).
(k) With respect to any repayment of unmatured B/A’s pursuant to the proviso to Section 2.11(a) or otherwise hereunder, a portion thereof may, at the option of such Lender, be by way of Bankers’ Acceptance accepted by such participant. In such event, it is agreed that the applicable Canadian Borrower shall upon request provide for the funding in full of the unmatured B/A’s to be repaid by paying to and depositing with the Canadian Administrative Agent Cash Collateral for each such unmatured B/A equal to the face amount payable at maturity thereof. The Canadian Administrative Agent shall hold such Cash Collateral in an interest bearing Cash Collateral account at rates prevailing at the time of deposit for similar accounts with the Canadian Administrative Agent; such Cash Collateral, such Cash Collateral account, any accounts receivable, claims, instruments or securities evidencing or relating to the foregoing, and any proceeds of any of the foregoing (collectively, the “Outstanding BAs Collateral”) shall be assigned to the Canadian Administrative Agent as security for the obligations of the applicable Canadian Borrower in relation to such B/A’s and the security interest of the Canadian Administrative Agent or created in such Outstanding BAs Collateral shall rank in priority to all other security interests and adverse claims against such Outstanding BAs Collateral. Such Outstanding BAs Collateral shall be applied to satisfy the obligations of the applicable Canadian Borrower for such B/A’s as they mature and the Canadian Revolving Lender granting Administrative Agent is hereby irrevocably directed by the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor of applicable Canadian Borrower to apply any such participant for delivery Outstanding BAs Collateral to such participantmaturing B/A’s. The Outstanding BAs Collateral created herein shall not be released to the applicable Canadian Borrower prior to the maturity of the applicable B/As without the consent of the Canadian Lenders; however, interest on such deposited amounts shall be for the account of the applicable Canadian Borrower and may be withdrawn by the applicable Canadian Borrower so long as no Default or Event of Default is then continuing. If, after maturity of the B/A’s for which such Outstanding BAs Collateral is held and application by the Canadian Administrative Agent of the Outstanding BAs Collateral to satisfy the obligations of the applicable Canadian Borrower hereunder with respect to the B/A’s being repaid, any interest or other proceeds of the Outstanding BAs Collateral remains, such interest or other proceeds shall be promptly paid and transferred by the Canadian Administrative Agent to the applicable Canadian Borrower so long as no Default or Event of Default is then continuing.
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Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each the Canadian Borrower may request a Borrowing denominated in Canadian Revolving Borrowing dollars by presenting drafts for acceptance and and, if applicable, purchase as B/As by the Canadian Revolving Lenders.
(b) To facilitate No Contract Period with respect to a B/A Borrowingsto be accepted and, each 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 Revolving 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. In this respect, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each The Canadian Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender shall bind such the Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such the Canadian Borrower. Each 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 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 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 Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iiiii) accepted and purchased by it hereunder and (iviii) canceled at their respective maturities. Each Canadian Revolving 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 that which apply to such Canadian Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either the Canadian Borrower, a Canadian Revolving Lender shall cancel all forms of B/A that which have been pre-signed or pre-endorsed on behalf of such the Canadian Borrower and that which are held by such Canadian Lender and are not required to be issued in accordance with such the Canadian Borrower’s 's irrevocable notice.
(c) Drafts . At the discretion of a 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 Canadian Revolving Lender or applicable Canadian Borrower at the date of issuance of a B/ALender, 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 applicable Canadian Borrower.
(d) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 by way of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As Bankers' Acceptances to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by a Canadian Revolving Lender shall be a whole multiple of C $100,000, and such face amount shall be in the Canadian Revolving Lenders’ pro rata portions of such Canadian Revolving Borrowing; provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $100,000.
(e) Upon acceptance of a B/A by a Canadian Revolving Lender, such Lender shall purchase, or arrange the purchase of, each B/A from the applicable Canadian Borrower at the Discount Rate for such Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, may be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e) in respect of each B/A accepted by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(e).
(f) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(g) If a Canadian Revolving Lender notifies the Canadian Administrative Agent in writing that it is unable or unwilling to accept Bankers’ Acceptances, such Lender will, instead of accepting and purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period (a “B/A Equivalent Note”), issued in the form of Exhibit K"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, issued by such Canadian Borrower in consistent with the amount and for the same term as the draft that such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to terms of this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect of such B/A Equivalent Note. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by such Lender All Depository Bills so issued shall be set off against the Discount Proceeds payable governed by such Lender under this Section 2.22(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before the maturity date of such B/As, the applicable Canadian Borrower shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on the maturity date of such B/As. If such Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face amount of such B/A as provided in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such Canadian Borrower to make such payment.
(i) Each Canadian Borrower waives presentment for payment and any other defense, in respect of a B/A accepted and purchased by it pursuant to this Agreement, that might exist solely by reason of such B/A being held, at the maturity thereof, by such Lender in its own right and each Canadian Borrower agrees not to claim any days of grace if such Lender as holder sues such Canadian Borrower on the B/A for payment of the amount payable by such Canadian Borrower thereunder. On the specified maturity date of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and after such payment, such 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.
(j) If a Canadian Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant under Section 9.04(f), then in respect of any B/A Borrowing, a portion thereof may, at the option of such Lender, be by way of Bankers’ Acceptance accepted by such participant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor of such participant for delivery to such participant2.22.
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Bankers’ Acceptances. (a) Subject to the terms and conditions Upon execution of this Agreement, the Canadian Borrower shall deliver to the Canadian Lenders depository notes and/or bills of exchange, in the form for Bankers' Acceptances of each Canadian Borrower may Lender, executed in blank by its Authorized Signatories in sufficient quantity and thereafter shall, from time to time upon request a Canadian Revolving Borrowing by presenting drafts for acceptance and purchase as B/As by from the Canadian Revolving LendersAdministrative Agent, deliver to such Canadian Lenders further quantities of such bills of exchange and/or depository notes (on such Canadian Lender's forms) so executed, and the Canadian Lenders shall hold such bills of exchange and/or depository notes in safekeeping. The form of Bankers' Acceptances shall be as set out in Schedule "H".
(b) To facilitate B/A Borrowings, each The Canadian Borrower hereby appoints agrees to indemnify each such Canadian Lender against any cost, expense (including reasonable counsel fees and disbursements) claim, demand, action, loss or liability (except to the extent resulting from the gross negligence or wilful misconduct of such Canadian Lender) that such Lender may suffer or incur in connection with the deposit, safekeeping or completion in accordance with Section 2.8 of such bills of exchange and/or depository notes. Each Canadian Lender is hereby appointed attorney-in-fact for such completion and to execute any endorsement necessary in connection with the transactions contemplated by this Agreement with respect to Bankers' Acceptances. These agreements shall survive the termination of this Agreement and shall remain in full force and effect after termination of this Agreement.
(c) With respect to any such bills of exchange and/or depository notes deposited in accordance with this Section 2.6, the Canadian Borrower shall furnish to each Canadian Revolving Lender as its attorney accepting such drafts, in form and substance satisfactory to such Lender, (i) evidence of the authority of any officers or other representatives authorized to sign and endorse on to act with respect to such drafts, (ii) if such Lender shall so request, a formal power of attorney authorizing it to take all actions contemplated hereby with respect to Bankers' Acceptances as provided herein, and (iii) such other documents as such Canadian Lender or its behalfcounsel may reasonably request.
(d) When the Canadian Borrower wishes to make a Borrowing by way of Bankers' Acceptances it shall give the Canadian Administrative Agent the notice required pursuant to Section 2.2. Bankers' Acceptances shall have terms of at least 30 days and not more than 180 days excluding days of grace (and which shall, in handwriting no event, end on a date after the Final Maturity Date).
(e) On the same day it receives such notice, the Canadian Administrative Agent shall notify by telephone or by facsimile or mechanical signature as and when deemed necessary by such Lenderin writing all the Canadian Lenders of the details of the proposed issue, blank forms of B/As in the form requested by such Lender. In this respectspecifying, it is for each Canadian Revolving Lender’s responsibility to maintain an adequate supply :
(i) the Principal Amount of blank forms of B/As for acceptance under this Agreement. Each Canadian Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender shall bind such Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Canadian Borrower. Each Canadian Revolving Lender is hereby authorized 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 B/As required Bankers' Acceptances to be accepted and purchased by such Canadian 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 Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, ; and
(ii) voided by it for any reason, (iii) accepted and purchased by it hereunder and (iv) canceled at their respective maturities. Each Canadian Revolving 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 that apply to such Lender. Each Canadian Revolving Lender agrees to provide a copy term of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either Canadian Borrower, a Canadian Revolving Lender shall cancel all forms of B/A that have been pre-signed or pre-endorsed on behalf of such Canadian Borrower and that are held by such Lender and are not required to be issued in accordance with such Canadian Borrower’s irrevocable noticeBankers' Acceptances.
(c) Drafts of a 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 Canadian Revolving Lender or applicable 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 applicable Canadian Borrower.
(d) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 by way of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by a Canadian Revolving Lender shall be a whole multiple of C $100,000, and such face amount shall be in the Canadian Revolving Lenders’ pro rata portions of such Canadian Revolving Borrowing; provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $100,000.
(e) Upon acceptance of a B/A by a Canadian Revolving Lender, such Lender shall purchase, or arrange the purchase of, each B/A from the applicable Canadian Borrower at the Discount Rate for such Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e) in respect of each B/A accepted by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(e).
(f) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(g) If a Canadian Revolving Lender notifies the Canadian Administrative Agent in writing that it is unable or unwilling to accept Bankers’ Acceptances, such Lender will, instead of accepting and purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period (a “B/A Equivalent Note”), in the form of Exhibit K, issued by such Canadian Borrower in the amount and for the same term as the draft that such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect of such B/A Equivalent Note. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before the maturity date of such B/As, the applicable Canadian Borrower shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on the maturity date of such B/As. If such Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face amount of such B/A as provided in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such Canadian Borrower to make such payment.
(i) Each Canadian Borrower waives presentment for payment and any other defense, in respect of a B/A accepted and purchased by it pursuant to this Agreement, that might exist solely by reason of such B/A being held, at the maturity thereof, by such Lender in its own right and each Canadian Borrower agrees not to claim any days of grace if such Lender as holder sues such Canadian Borrower on the B/A for payment of the amount payable by such Canadian Borrower thereunder. On the specified maturity date of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and after such payment, such 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.
(j) If a Canadian Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant under Section 9.04(f), then in respect of any B/A Borrowing, a portion thereof may, at the option of such Lender, be by way of Bankers’ Acceptance accepted by such participant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor of such participant for delivery to such participant.
Appears in 1 contract
Samples: Credit Agreement (Firstservice Corp)
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each Canadian Borrower may request a Borrowing denominated in Canadian Revolving Borrowing dollars by presenting drafts for acceptance and and, if applicable, purchase as B/As by the Canadian Revolving Tranche A Lenders and the Parent Borrower may request a Borrowing denominated in Canadian dollars by presenting drafts for acceptance and, if applicable, purchase as B/As by the Canadian Tranche B Lenders.
(b) To facilitate No Contract Period with respect to a B/A Borrowingsto 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, each Canadian Borrower hereby appoints each Canadian Revolving Tranche A 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 Tranche A Lender, blank forms of B/As in the form requested by such Lender. In this respect, it is Canadian Tranche A Lender and the Parent Borrower hereby appoints each Canadian Revolving Tranche B 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 Tranche B Lender’s responsibility to maintain an adequate supply of , blank forms of B/As for acceptance under this Agreementin the form requested by such Canadian Tranche B Lender. Each Canadian Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Tranche A Lender shall bind such Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Canadian Borrower, and the Parent Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Tranche B Lender shall bind the Parent Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of the Parent Borrower. Each 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 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 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 Lender or its officers, employees, agents or representatives. Each. Each applicable Canadian Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iiiii) accepted and purchased by it hereunder and (iviii) canceled at their respective maturities. Each Canadian Revolving 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 that which apply to such Canadian Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either the applicable Canadian Borrower, a Canadian Revolving Lender shall cancel all forms of B/A that which have been pre-signed or pre-endorsed on behalf of such asuch Canadian Borrower and that which are held by such Canadian Lender and are not required to be issued in accordance with such thesuch 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.
(cd) Drafts of a 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 Revolving Lender Lenders or the applicable 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 applicable such Canadian Borrower.
(de) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 by way borrowing, continuation or conversion of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Tranche A Lenders or Canadian Tranche B Lenders, as applicable, and shall advise each Canadian Revolving Tranche A Lender or Canadian Tranche B Lender, as applicable, of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by a Canadian Revolving Lender shall be a whole in an integral multiple of C $100,000, C$100,000 and such face amount shall be in the each Canadian Revolving Lenders’ Lender’s pro rata portions portion of such Canadian Revolving Borrowing; provided provided, that the Canadian Administrative Agent may may, in its sole discretion discretion, increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $C$100,000.
(ef) Upon acceptance The applicable Canadian Borrower may specify in a notice of a borrowing or conversion or continuation pursuant to Section 2.03 or Section 2.10, respectively, that it desires that any B/A As requested by a such notice be purchased by the applicable Canadian Revolving LenderLenders, such Lender in which case the applicable Canadian Lenders shall purchase, or arrange the purchase of, each B/A from the applicable such Canadian Borrower at the B/A Discount Rate for such Canadian Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable such Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e) 2.06 in respect of each B/A accepted by such Canadian Lender shall be set off against the Discount Proceeds payable by such Canadian Lender under this Section 2.22(e)2.22.
(fg) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(gh) If a Canadian Revolving Lender notifies the Canadian Administrative Agent in writing that it is unable or unwilling to accept Bankers’ Acceptances, such Canadian Lender will, instead of accepting and and, if applicable, purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period make an advance (a “B/A Equivalent NoteLoan”), in ) to the form of Exhibit K, issued by such applicable Canadian Borrower 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, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Canadian Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect Discount Proceeds of such B/A Equivalent Note. The Acceptance Fee payable by Loan for the account of such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each Borrower. Each such B/A Equivalent Note purchased by Loan will bear interest at the same rate that would result if such Lender shall be set off against had accepted (and been paid an Acceptance Fee) and purchased (on a discounted basis at the Discount Proceeds payable by such Lender under this Section 2.22(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before Discount Rate) a Bankers’ Acceptance for the maturity date relevant Contract Period (it being the intention of the parties that each such B/As, A Equivalent Loan shall have the applicable Canadian Borrower shall notify same economic consequences for the Lenders and the Canadian Administrative Agent at Borrowers as the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of Bankers’ Acceptance which such B/As A Equivalent Loan replaces). All such interest shall be paid in advance on the maturity date of such B/As. If such Canadian Borrower fails to make such paymentA Equivalent Loan is made, such maturing B/As shall, subject to satisfaction of and will be deducted from the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face principal amount of such B/A as provided Equivalent Loan in Section 2.07 the same manner in which the Discount Proceeds of a Bankers’ Acceptance would be deducted from the face amount of the Bankers’ Acceptance. Each B/A Equivalent Loan shall be evidenced by a non-interest bearing promissory note (a “Discount Note”) of the applicable Canadian Borrower, denominated in Canadian Dollarsdollars, executed and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred delivered by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such applicable Canadian Borrower to make such payment.Canadian Lender, substantially in the form of Exhibit H.
(i) Each Canadian Borrower waives presentment for payment and any other defense, defense to payment of any amounts due to a Canadian Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Canadian Lender in its own right and each Canadian Borrower agrees not to claim any days of grace if such Canadian Lender as holder sues such Canadian Borrower on the B/A for payment of the amount payable by such Canadian Borrower thereunder. On the specified maturity date last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through pay the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and after such payment, such 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) If Except as required by any Canadian Lender upon the occurrence of an Event of Default, no B/A Loan may be repaid by a Canadian Revolving Lender grants a participation in a portion Borrower prior to the expiry date of its rights under this Agreement the Contract Period applicable to a participant under Section 9.04(f)such B/A Loan; provided, then in respect of however, that any B/A BorrowingLoan may be defeased as provided in the proviso to Section 2.11(a).
(k) With respect to any repayment of unmatured B/A’s pursuant to the proviso to Section 2.11(a) or otherwise hereunder, a portion thereof may, at the option of such Lender, be by way of Bankers’ Acceptance accepted by such participant. In such event, it is agreed that the applicable Canadian Borrower shall upon request provide for the funding in full of the unmatured B/A’s to be repaid by paying to and depositing with the Canadian Administrative Agent Cash Collateral for each such unmatured B/A equal to the face amount payable at maturity thereof. The Canadian Administrative Agent shall hold such Cash Collateral in an interest bearing Cash Collateral account at rates prevailing at the time of deposit for similar accounts with the Canadian Administrative Agent; such Cash Collateral, such Cash Collateral account, any accounts receivable, claims, instruments or securities evidencing or relating to the foregoing, and any proceeds of any of the foregoing (collectively, the “Outstanding BAs Collateral”) shall be assigned to the Canadian Administrative Agent as security for the obligations of the applicable Canadian Borrower in relation to such B/A’s and the security interest of the Canadian Administrative Agent or created in such Outstanding BAs Collateral shall rank in priority to all other security interests and adverse claims against such Outstanding BAs Collateral. Such Outstanding BAs Collateral shall be applied to satisfy the obligations of the applicable Canadian Borrower for such B/A’s as they mature and the Canadian Revolving Lender granting Administrative Agent is hereby irrevocably directed by the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor of applicable Canadian Borrower to apply any such participant for delivery Outstanding BAs Collateral to such participantmaturing B/A’s. The Outstanding BAs Collateral created herein shall not be released to the applicable Canadian Borrower prior to the maturity of the applicable B/As without the consent of the applicable Canadian Lenders; however, interest on such deposited amounts shall be for the account of the applicable Canadian Borrower and may be withdrawn by the applicable Canadian Borrower so long as no Default or Event of Default is then continuing. If, after maturity of the B/A’s for which such Outstanding BAs Collateral is held and application by the Canadian Administrative Agent of the Outstanding BAs Collateral to satisfy the obligations of the applicable Canadian Borrower hereunder with respect to the B/A’s being repaid, any interest or other proceeds of the Outstanding BAs Collateral remains, such interest or other proceeds shall be promptly paid and transferred by the Canadian Administrative Agent to the applicable Canadian Borrower so long as no Default or Event of Default is then continuing.
Appears in 1 contract
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each the Canadian Borrower Borrowers may request a Borrowings of Canadian Revolving Borrowing Credit Loans by presenting drafts for acceptance and purchase as B/As by the Canadian Revolving Lenders.
(b) To facilitate availment of B/A Borrowings, the Canadian Borrowers hereby appoint each Canadian Borrower hereby appoints each Canadian Revolving Lender as its their attorney to sign and endorse on its their 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. In this respect, it is each Canadian Revolving Lender’s 's responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each The Canadian Borrower recognizes Borrowers recognize and agrees agree that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender shall jointly and severally bind such the Canadian Borrower Borrowers as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such each Canadian Borrower. Each 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 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 Revolving Lender or any Affiliate thereof 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 or its Affiliate, as applicable, or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i1) received by it in blank hereunder, (ii2) voided by it for any reason, (iii3) accepted and purchased by it hereunder and (iv4) canceled at their respective maturities. Each Canadian Revolving 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 that which apply to such Canadian Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either the Canadian Borrower Borrowers at the applicable Canadian Borrower’s Borrowers' expense upon request. On request by or on behalf of either the Canadian BorrowerBorrowers, a Canadian Revolving Lender shall cancel all forms of B/A that As which have been pre-signed or pre-endorsed on behalf of such the Canadian Borrower Borrowers and that which are held by such Canadian Lender and are not required to be issued in accordance with such the Canadian Borrower’s Borrowers' irrevocable notice. The Canadian Borrowers agree that, at the request of the Canadian Administrative Agent, they shall deliver to the 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 clearance system maintained by the Canadian Depository for Securities.
(c) Drafts of a the Canadian Borrower Borrowers to be accepted as B/As hereunder shall be signed as set forth in this Section 2.222.8. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian Revolving Lender or applicable the Canadian Borrower Borrowers 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 applicable Canadian BorrowerBorrowers.
(d) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to this Section 2.03 2.8 or Section 2.12 by way of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by a the Canadian Revolving Lender Lenders in respect of any Borrowing or rollover of B/A Loans shall be a whole multiple of C $100,000, not less than C$500,000 and such face amount shall be in the Canadian Revolving Lenders’ pro rata portions an integral multiple of such Canadian Revolving Borrowing; provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $C$100,000.
(e) Upon acceptance of a B/A by a Canadian Revolving Lender, such Canadian Lender shall purchase, or arrange the purchase of, each such B/A from the applicable Canadian Borrower Borrowers at the Discount Rate for such Canadian Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A Borrowers in which event an Acceptance Fee shall be payable by the Canadian Borrowers to such Canadian Lender in respect of such B/A. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e) in respect of each B/A accepted by such Lender and shall be set off against the Discount Proceeds payable by such Canadian Lender under this Section 2.22(e2.8(e).
(f) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(g) If a Canadian Revolving Lender is not a chartered bank under the Bank Act (Canada) or if a Canadian Lender notifies the Canadian Administrative Agent in writing that it is otherwise unable or unwilling to accept Bankers’ AcceptancesB/As, such Canadian Lender will, instead of accepting and purchasing Bankers’ AcceptancesB/As, purchase from the applicable Canadian Borrower Borrowers a non-interest bearing note that does not bear interest during the Contract Period denominated in C$ (a “"B/A Equivalent Note”"), in the form of Exhibit K, issued by such the Canadian Borrower Borrowers in the amount and for the same term as the draft that which such Canadian Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Canadian Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect Discount Proceeds of such B/A Equivalent NoteLoan for the account of any Canadian Borrower. The Acceptance Fee payable by Each such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note Loan will bear interest at the same rate which would result if such Canadian Lender had accepted (and been paid an Acceptance Fee) and purchased by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(g).
(hon a discounted basis) With respect to each a B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before for the maturity date relevant Contract Period (it being the intention of the parties that each such B/As, A Equivalent Loan shall have the applicable same economic consequences for the Canadian Lenders and any Canadian Borrower shall notify as the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of A which such B/As A Equivalent Loan replaces). All such interest shall be paid in advance on the maturity date of such B/As. If such Canadian Borrower fails to make such paymentA Loan is made, such maturing B/As shall, subject to satisfaction of and will be deducted from the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face principal amount of such B/A as provided Equivalent Loan in Section 2.07 and the same manner in which the Discount Proceeds of a B/A would be deducted from the face amount of the B/A. Subject to repayment requirements, on the last day of the relevant Contract Period for such B/A Equivalent Loan, any Canadian Borrower shall on demand pay any lossesbe entitled to convert each such B/A Equivalent Loan into another type of Loan, costs or penalties that may have been incurred by to roll over each such B/A Equivalent Loan into another B/A Equivalent Loan, all in accordance with the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure applicable provisions of such Canadian Borrower to make such paymentthis Agreement.
(ih) Each The Canadian Borrower waives Borrowers waive presentment for payment and any other defense, defense to payment of any amounts due to a Canadian Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Canadian Lender in its own right and each the Canadian Borrower agrees Borrowers agree not to claim any days of grace if such Canadian Lender as holder sues such the Canadian Borrower Borrowers on the B/A for payment of the amount payable by such the Canadian Borrower Borrowers thereunder. On the specified maturity date of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower Borrowers shall jointly and severally pay, through the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and after such payment, such the Canadian Borrower Borrowers 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.
(ji) If a Canadian Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant under Section 9.04(f)10.6, then in respect of any B/A Borrowing, a portion thereof may, at the option of such Canadian Lender, be by way of Bankers’ Acceptance B/A accepted by such participant. In such event, the applicable Canadian Borrower Borrowers shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking B/A indemnity in favor of such participant for delivery to such participant.
(j) Notwithstanding anything herein to the contrary, no B/A may be prepaid prior to the maturity date thereof, except as provided in Article 8.
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Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each Canadian Borrower may request a Canadian Revolving Borrowing by presenting drafts for acceptance and purchase and, if applicable, purchase, as B/As by the Canadian Revolving Lenders.
(b) To facilitate No Contract Period with respect to a B/A Borrowingsto be accepted and, if applicable, purchased, as a Revolving Advance shall extend beyond the Revolving Commitment Termination Date and no Contract Period with respect to a B/A to be accepted and, if applicable, purchased, as a Term Advance shall extend beyond the Final Maturity Date.
(c) To facilitate availment of B/A Advances, each Canadian Borrower hereby appoints each Canadian Revolving Lender as its attorney to sign and endorse on its behalfbehalf (in accordance with a Notice of Borrowing or Notice of Continuation relating to a B/A Advance), in handwriting or by facsimile or mechanical signature as and when deemed necessary by such Lender, blank forms of B/As in the form requested by such Lender. In this respect, it is each Canadian Revolving Lender’s 's responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Canadian Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender on behalf of such Borrower shall bind such Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Canadian Borrower. Each Canadian Revolving Lender is hereby authorized (in accordance with a Notice of Borrowing or Notice of Continuation relating to a B/A Advance) 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 B/As required to be accepted and purchased by such 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 wilful misconduct of such the Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder hereunder, and (iv) canceled at their respective maturities. Each Canadian Revolving 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 that apply to such Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either Canadian Borrower, a Canadian Revolving Lender shall cancel all forms of B/A that As which have been pre-signed or pre-endorsed on behalf of such Canadian Borrower and that are held by such Lender and are not required to be issued in accordance with such Canadian Borrower’s 's irrevocable notice.
(c) Drafts of a 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 Canadian Revolving Lender or applicable 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 applicable Canadian Borrower.
(d) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 by way of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by a Canadian Revolving Lender shall be a whole multiple of C $100,000, and such face amount shall be in the Canadian Revolving Lenders’ pro rata portions of such Canadian Revolving Borrowing; provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $100,000.
(e) Upon acceptance of a B/A by a Canadian Revolving Lender, such Lender shall purchase, or arrange the purchase of, each B/A from the applicable Canadian Borrower at the Discount Rate for such Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e) in respect of each B/A accepted by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(e).
(f) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(g) If a Canadian Revolving Lender notifies the Canadian Administrative Agent in writing that it is unable or unwilling to accept Bankers’ Acceptances, such Lender will, instead of accepting and purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period (a “B/A Equivalent Note”), in the form of Exhibit K, issued by such Canadian Borrower in the amount and for the same term as the draft that such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect of such B/A Equivalent Note. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before the maturity date of such B/As, the applicable Canadian Borrower shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on the maturity date of such B/As. If such Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face amount of such B/A as provided in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such Canadian Borrower to make such payment.
(i) Each Canadian Borrower waives presentment for payment and any other defense, in respect of a B/A accepted and purchased by it pursuant to this Agreement, that might exist solely by reason of such B/A being held, at the maturity thereof, by such Lender in its own right and each Canadian Borrower agrees not to claim any days of grace if such Lender as holder sues such Canadian Borrower on the B/A for payment of the amount payable by such Canadian Borrower thereunder. On the specified maturity date of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and after such payment, such 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.
(j) If a Canadian Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant under Section 9.04(f), then in respect of any B/A Borrowing, a portion thereof may, at the option of such Lender, be by way of Bankers’ Acceptance accepted by such participant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor of such participant for delivery to such participant.
Appears in 1 contract
Samples: Canadian Credit Agreement (Burlington Resources Inc)
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each Canadian Borrower may request a Borrowing denominated in Canadian Revolving Borrowing dollars by presenting drafts for acceptance and and, if applicable, purchase as B/As by the Canadian Revolving Lenders.
(b) To facilitate No Contract Period with respect to a B/A Borrowingsto 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, each Canadian Borrower hereby appoints each Canadian Revolving 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. In this respect, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Canadian Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender shall bind such Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Canadian Borrower. Each 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 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 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 Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iiiii) accepted and purchased by it hereunder and (iviii) canceled at their respective maturities. Each Canadian Revolving 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 that which apply to such Canadian Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either the Canadian Borrower, a Canadian Revolving Lender shall cancel all forms of B/A that which have been pre-signed or pre-endorsed on behalf of such a Canadian Borrower and that which are held by such Canadian Lender and are not required to be issued in accordance with such the Canadian Borrower’s irrevocable notice.
(c) Drafts . At the discretion of a 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 Canadian Revolving Lender or applicable Canadian Borrower at the date of issuance of a B/ALender, 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 applicable Canadian Borrower.
(d) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 by way of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As Bankers’ Acceptances to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by a Canadian Revolving Lender shall be a whole multiple of C $100,000, and such face amount shall be in the Canadian Revolving Lenders’ pro rata portions of such Canadian Revolving Borrowing; provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $100,000.
(e) Upon acceptance of a B/A by a Canadian Revolving Lender, such Lender shall purchase, or arrange the purchase of, each B/A from the applicable Canadian Borrower at the Discount Rate for such Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, may be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e) in respect of each B/A accepted by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(e).
(f) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(g) If a Canadian Revolving Lender notifies the Canadian Administrative Agent in writing that it is unable or unwilling to accept Bankers’ Acceptances, such Lender will, instead of accepting and purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period (a “B/A Equivalent Note”), issued in the form of Exhibit K“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, issued by such Canadian Borrower in consistent with the amount and for the same term as the draft that such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to terms of this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect of such B/A Equivalent Note. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by such Lender All Depository Bills so issued shall be set off against the Discount Proceeds payable governed by such Lender under this Section 2.22(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before the maturity date of such B/As, the applicable Canadian Borrower shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on the maturity date of such B/As. If such Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face amount of such B/A as provided in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such Canadian Borrower to make such payment.
(i) Each Canadian Borrower waives presentment for payment and any other defense, in respect of a B/A accepted and purchased by it pursuant to this Agreement, that might exist solely by reason of such B/A being held, at the maturity thereof, by such Lender in its own right and each Canadian Borrower agrees not to claim any days of grace if such Lender as holder sues such Canadian Borrower on the B/A for payment of the amount payable by such Canadian Borrower thereunder. On the specified maturity date of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and after such payment, such 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.
(j) If a Canadian Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant under Section 9.04(f), then in respect of any B/A Borrowing, a portion thereof may, at the option of such Lender, be by way of Bankers’ Acceptance accepted by such participant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor of such participant for delivery to such participant2.22.
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Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each the Canadian Borrower may request a Multicurrency Revolving Credit Borrowing denominated in Canadian Revolving Borrowing Dollars by presenting drafts for acceptance and purchase as B/As by the Canadian Multicurrency Revolving Credit Lenders.
(b) To facilitate No Contract Period with respect to a B/A Borrowingsto be accepted and, each if applicable, purchased as a Multicurrency Revolving Loan shall extend beyond the Revolving Credit Maturity Date. All B/As and B/A Loans shall be denominated in Canadian Dollars.
(c) To facilitate availment of B/A Loans, the Canadian Borrower hereby appoints each Canadian Multicurrency Revolving Credit Lender as its attorney to sign and endorse on its behalfbehalf (in accordance with a Borrowing Request relating to a B/A Loan pursuant to Section 2.03 or 2.10), in handwriting or by facsimile or mechanical signature as and when deemed necessary by such Multicurrency Revolving Credit Lender, blank forms of B/As in the form requested by such Multicurrency Revolving Credit Lender. In this respect, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each The Canadian Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Multicurrency Revolving Credit Lender on behalf of the Canadian Revolving Lender Borrower shall bind such the Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such the Canadian Borrower. Each Canadian Multicurrency Revolving Credit Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Loan) to issue such B/As endorsed in blank in such face amounts as may be determined by such Multicurrency Revolving Credit Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by such Multicurrency Revolving Credit Lender. No Canadian Multicurrency 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 for the gross negligence or willful wilful misconduct of such Multicurrency Revolving Credit Lender or its officers, employees, agents or representatives. Each Canadian Multicurrency Revolving Credit Lender shall maintain a record record, which shall be made available to the Canadian Borrower upon its request, with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder hereunder, and (iv) canceled at their respective maturities. Each Canadian Revolving 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 that apply to such Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either the Canadian Borrower, a Canadian Multicurrency Revolving Credit Lender shall cancel all forms of B/A that As which have been pre-signed or pre-endorsed on behalf of such the Canadian Borrower and that are held by such Multicurrency Revolving Credit Lender and are not required to be issued in accordance with such the Canadian Borrower’s irrevocable notice. Alternatively, the Canadian Borrower agrees that, at the request of the Administrative Agent, the Canadian Borrower shall deliver to the Administrative Agent a “depository note” which complies with the requirements of the Depository Bills and Notes Act (Canada), and consents to the deposit of any such depository note in the book-based debt clearance system maintained by the Canadian Depository for Securities.
(cd) Drafts of a the Canadian Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.222.24. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian Multicurrency Revolving Credit Lender or applicable 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 applicable Canadian Borrower.
(de) Promptly following the receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 specifying a Multicurrency Revolving Credit Borrowing by way of B/AsA, the Canadian Administrative Agent shall so advise the Canadian Multicurrency Revolving Credit Lenders and shall advise each Canadian Multicurrency Revolving Credit Lender of the aggregate face amount of the B/As A to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Multicurrency Revolving Credit Lenders). The In the case of Multicurrency Revolving Loans comprised of B/A Loans, the aggregate face amount of the B/As A to be accepted by a Canadian Multicurrency Revolving Credit Lender shall be in a minimum aggregate amount of C$100,000 and shall be a whole multiple of C $C$100,000, and such face amount shall be in the Canadian Multicurrency Revolving Credit Lenders’ pro rata portions of such Canadian Multicurrency Revolving Credit Borrowing; , provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Multicurrency Revolving Credit Lender’s portion of such B/A Borrowing Loan to the nearest C $100,000C$100,000 without reducing the aggregate Multicurrency Revolving Credit Commitments.
(ef) Upon The Canadian Borrower may specify in a Borrowing Request pursuant to Section 2.03 or 2.10 that it desires that any B/A requested by such Borrowing Request be purchased by the Multicurrency Revolving Credit Lenders, in which case the Multicurrency Revolving Credit Lenders shall, upon acceptance of a B/A by a Canadian Multicurrency Revolving Credit Lender, such Lender shall purchase, or arrange the purchase of, each B/A from the applicable Canadian Borrower at the Discount Rate for such Multicurrency Revolving Credit Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such the Canadian Borrower to a Canadian Multicurrency Revolving Credit Lender under this Section 2.22(e2.06(d) in respect of each B/A accepted by such Multicurrency Revolving Credit Lender shall be set off against and deducted from the Discount Proceeds payable by such Multicurrency Revolving Credit Lender under this Section 2.22(e)2.24.
(fg) Each Canadian Multicurrency Revolving Credit Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(gh) If a Canadian Multicurrency Revolving Credit Lender is not a chartered bank under the Bank Act (Canada) or if a Multicurrency Revolving Credit Lender notifies the Canadian Administrative Agent in writing that it is otherwise unable or unwilling to accept Bankers’ Acceptances, such Multicurrency Revolving Credit Lender will, instead of accepting and purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period make an advance (a “B/A Equivalent NoteLoan”), in ) to the form of Exhibit K, issued by such Canadian Borrower in the amount and for the same term as the draft that such Multicurrency Revolving Credit Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Multicurrency Revolving Credit Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect Discount Proceeds of such B/A Equivalent NoteLoan for the account of the Canadian Borrower. The Acceptance Fee payable by Each such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note Loan will bear interest at the same rate that would result if such Multicurrency Revolving Credit Lender had accepted (and been paid an Acceptance Fee) and purchased by such Lender shall be set off against (on a discounted basis at the Discount Proceeds payable by Rate) a Bankers’ Acceptance for the relevant Contract Period (it being the intention of the parties that each such Lender under this Section 2.22(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before Equivalent Loan shall have the maturity date of same economic consequences for the Multicurrency Revolving Credit Lenders and the Canadian Borrower as the Bankers’ Acceptance which such B/As, the applicable Canadian Borrower A Equivalent Loan replaces). All such interest shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth be paid in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover advance on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on A Equivalent Loan is made, and will be deducted from the maturity date of such B/As. If such Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face principal amount of such B/A as provided Equivalent Loan in Section 2.07 the same manner in which the deduction based on the Discount Rate and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to applicable Acceptance Fee of a Bankers’ Acceptance would be deducted from the failure face amount of such Canadian Borrower to make such paymentthe Bankers’ Acceptance.
(i) Each The Canadian Borrower waives presentment for payment and any other defense, defense to payment of any amounts due to a Multicurrency Revolving Credit Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Multicurrency Revolving Credit Lender in its own right right, and each the Canadian Borrower agrees not to claim any days of grace if such Lender Multicurrency Revolving Credit Lender, as holder holder, claims payment from or sues such the Canadian Borrower on the B/A for payment of the amount payable by such the Canadian Borrower thereunder. On the specified maturity date last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through pay the Canadian Administrative Agent, the Canadian Multicurrency Revolving Credit Lender that has accepted and purchased such a B/A or advanced a B/A Equivalent Loan the full face amount of such B/A and or B/A Equivalent Loan, as the case may be, and, after such payment, such the Canadian Borrower shall have no further liability in respect of such B/A and such Multicurrency Revolving Credit Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A.
(j) If a Except as required by any Multicurrency Revolving Credit Lender upon the occurrence of an Event of Default, no B/A Loan may be repaid by the Canadian Revolving Lender grants a participation in a portion Borrower prior to the expiry date of its rights under this Agreement the Contract Period applicable to a participant under Section 9.04(f)such B/A Loan; provided, then in respect of however, that any B/A Borrowing, a portion thereof may, at the option of such Lender, Loan may be by way of Bankers’ Acceptance accepted by such participant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking defeased as provided in favor of such participant for delivery to such participantSection 2.12(a).
Appears in 1 contract
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each the Canadian Borrower Borrowers may request a Borrowings of Canadian Revolving Borrowing Credit Loans by presenting drafts for acceptance and purchase as B/As by the Canadian Revolving Lenders.
(b) To facilitate availment of B/A Borrowings, the Canadian Borrowers hereby appoint each Canadian Borrower hereby appoints each Canadian Revolving Lender as its their attorney to sign and endorse on its their 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. In this respect, it is each Canadian Revolving Lender’s 's responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each The Canadian Borrower recognizes Borrowers recognize and agrees agree that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender shall jointly and severally bind such the Canadian Borrower Borrowers as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such each Canadian Borrower. Each 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 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 Revolving Lender or any Affiliate thereof 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 or its Affiliate, as applicable, or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i1) received by it in blank hereunder, (ii2) voided by it for any reason, (iii3) accepted and purchased by it hereunder and (iv4) canceled at their respective maturities. Each Canadian Revolving 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 that which apply to such Canadian Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either the Canadian Borrower Borrowers at the applicable Canadian Borrower’s Borrowers' expense upon request. On request by or on behalf of either the Canadian BorrowerBorrowers, a Canadian Revolving Lender shall cancel all forms of B/A that As which have been pre-signed or pre-endorsed on behalf of such the Canadian Borrower Borrowers and that which are held by such Canadian Lender and are not required to be issued in accordance with such the Canadian Borrower’s Borrowers' irrevocable notice. The Canadian Borrowers agree that, at the request of the Canadian Administrative Agent, they shall deliver to the 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 clearance system maintained by the Canadian Depository for Securities.
(c) Drafts of a the Canadian Borrower Borrowers to be accepted as B/As hereunder shall be signed as set forth in this Section 2.222.8. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian Revolving Lender or applicable the Canadian Borrower Borrowers 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 applicable Canadian BorrowerBorrowers.
(d) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to this Section 2.03 2.8 or Section 2.12 by way of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by a the Canadian Revolving Lender Lenders in respect of any Borrowing or rollover of B/A Loans shall be a whole multiple of C $100,000, not less than C$500,000 and such face amount shall be in the Canadian Revolving Lenders’ pro rata portions an integral multiple of such Canadian Revolving Borrowing; provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $C$100,000.
(e) Upon acceptance of a B/A by a Canadian Revolving Lender, such Canadian Lender shall purchase, or arrange the purchase of, each such B/A from the applicable Canadian Borrower Borrowers at the Discount Rate for such Canadian Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A Borrowers in which event an Acceptance Fee shall be payable by the Canadian Borrowers to such Canadian Lender in respect of such B/A. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e) in respect of each B/A accepted by such Lender and shall be set off against the Discount Proceeds payable by such Canadian Lender under this Section 2.22(e2.8(e).
(f) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(g) If a Canadian Revolving Lender is not a chartered bank under the Bank Act (Canada) or if a Canadian Lender notifies the Canadian Administrative Agent in writing that it is otherwise unable or unwilling to accept Bankers’ AcceptancesB/As, such Canadian Lender will, instead of accepting and purchasing Bankers’ AcceptancesB/As, purchase from the applicable Canadian Borrower Borrowers a non-interest bearing note that does not bear interest during the Contract Period denominated in C$ (a “"B/A Equivalent Note”EQUIVALENT NOTE"), in the form of Exhibit KM, issued by such the Canadian Borrower Borrowers in the amount and for the same term as the draft that which such Canadian Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Canadian Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect Discount Proceeds of such B/A Equivalent NoteLoan for the account of any Canadian Borrower. The Acceptance Fee payable by Each such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note Loan will bear interest at the same rate which would result if such Canadian Lender had accepted (and been paid an Acceptance Fee) and purchased by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(g).
(hon a discounted basis) With respect to each a B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before for the maturity date relevant Contract Period (it being the intention of the parties that each such B/As, A Equivalent Loan shall have the applicable same economic consequences for the Canadian Lenders and any Canadian Borrower shall notify as the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of A which such B/As A Equivalent Loan replaces). All such interest shall be paid in advance on the maturity date of such B/As. If such Canadian Borrower fails to make such paymentA Loan is made, such maturing B/As shall, subject to satisfaction of and will be deducted from the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face principal amount of such B/A as provided Equivalent Loan in Section 2.07 and the same manner in which the Discount Proceeds of a B/A would be deducted from the face amount of the B/A. Subject to repayment requirements, on the last day of the relevant Contract Period for such B/A Equivalent Loan, any Canadian Borrower shall on demand pay any lossesbe entitled to convert each such B/A Equivalent Loan into another type of Loan, costs or penalties that may have been incurred by to roll over each such B/A Equivalent Loan into another B/A Equivalent Loan, all in accordance with the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure applicable provisions of such Canadian Borrower to make such paymentthis Agreement.
(ih) Each The Canadian Borrower waives Borrowers waive presentment for payment and any other defense, defense to payment of any amounts due to a Canadian Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Canadian Lender in its own right and each the Canadian Borrower agrees Borrowers agree not to claim any days of grace if such Canadian Lender as holder sues such the Canadian Borrower Borrowers on the B/A for payment of the amount payable by such the Canadian Borrower Borrowers thereunder. On the specified maturity date of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower Borrowers shall jointly and severally pay, through the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and after such payment, such the Canadian Borrower Borrowers 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.
(ji) If a Canadian Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant under Section 9.04(f)10.6, then in respect of any B/A Borrowing, a portion thereof may, at the option of such Canadian Lender, be by way of Bankers’ Acceptance B/A accepted by such participant. In such event, the applicable Canadian Borrower Borrowers shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking B/A indemnity in favor of such participant for delivery to such participant.
(j) Notwithstanding anything herein to the contrary, no B/A may be prepaid prior to the maturity date thereof, except as provided in Article 8.
Appears in 1 contract
Bankers’ Acceptances. Loans will be provided based upon the BA Discount Rate as a Banker’s Acceptance and the following terms will apply:
(a) Subject Each Draft tendered by the Borrower for acceptance by the Bank hereunder shall be denominated in Canadian Dollars, shall be payable in Canada, shall be in denomination of not less than $500,000 and $100,000 increments thereon, and shall have a term of between thirty (30) and one hundred eighty (180) days as selected by the Borrower in accordance with the terms of this Agreement (the “BA Period”). Notwithstanding any other provision herein to the terms contrary, the Bank shall have no obligation to accept any Draft having a term of less than thirty (30) or more than one hundred eighty (180) days. The Borrower acknowledges that the Bank may require the delivery of Drafts which are in conformity with the rules and conditions procedures of this Agreement, each Canadian Borrower may request a Canadian Revolving Borrowing by presenting drafts for acceptance clearing house (as that term is defined in the Depository Bills and purchase as B/As Notes Act (Canada)) used by the Canadian Revolving LendersBank for the delivery, transfer and collection of bankers’ acceptances and depository bills.
(b) Upon presentation of one or more Drafts for acceptance, the Borrower shall pay to the Bank the Acceptance Fee applicable to the Bankers' Acceptance, the Bank shall advance to or to the order of the Borrower a Loan in the form of a Bankers' Acceptance an amount equal to the face amount of such Draft or Drafts discounted at the applicable BA Discount Rate being the BA Discount Proceeds.
(c) The Borrower shall provide for each accepted Draft at its maturity at the Bank's main branch in Xxxxxxx, Xxxxxxx, the city where such Draft is payable, either by payment of the full principal amount thereof or through utilization of the Revolving Credit Facility in accordance with this Agreement or through a combination thereof. In particular, but without limitation, for purposes of determining the maximum available amount of credit, at any time, the face amount of the Bankers' Acceptance shall be utilized, and the Borrower may not at any time request that any Bankers' Acceptance be issued if the face amount of such requested Bankers' Acceptance together with the aggregate outstanding principal would exceed the Commitment Amount. Any amount owing by the Borrower in respect of any Bankers' Acceptance which is not paid or provided for in accordance with the foregoing shall be deemed to be a Canadian Prime Rate Loan owing by the Borrower to the Bank and shall be subject to all of the provisions of this Agreement applicable to a Canadian Prime Rate Loan (until the same is converted to a Loan of another type pursuant to the provisions hereof).
(d) Upon an acceleration of the Obligations in accordance with the terms hereof, the Borrower shall forthwith pay to the Bank an amount equal to the Bank's maximum potential liability under all such outstanding Bankers' Acceptances. Such amount shall be held by the Bank as general and continuing cash collateral for payment of the indebtedness and liability of the Borrower to the Bank in respect of the Bankers' Acceptances and the Bank shall be entitled to apply such cash collateral to pay the entire balance of the Borrower’s Obligations in respect of the Bankers’ Acceptances at the maturity thereof.
(e) To facilitate B/A Borrowingsthe acceptance of Bankers’ Acceptances hereunder, each Canadian the Borrower hereby authorizes the Bank and irrevocably appoints each Canadian Revolving Lender the Bank as its attorney attorney, respectively:
(i) to complete and sign and endorse on its the Borrower’s behalf, in handwriting either manually or by facsimile or mechanical signature as and when deemed necessary by such Lendersignature, blank forms of B/As the Drafts to create the Bankers’ Acceptances (with, in the form requested Bank'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 Bank, to endorse on behalf of the Borrower, either manually or by facsimile or mechanical signature, the Bankers’ Acceptances in favour of the applicable purchaser or endorsee thereof including, in the Bank's discretion, a clearing house (as defined by the Depository Bills and Notes Act (Canada));
(iii) to deliver the Bankers’ Acceptances to such Lenderpurchaser or to deposit the Bankers’ Acceptances with such clearing house; and
(iv) to comply with the procedures and requirements established from time to time by the Bank or such clearing house in respect of the delivery, transfer and collection of Bankers' Acceptances and depository bills. In this respectAll Bankers’ Acceptances so completed, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply signed, endorsed, delivered or deposited by the Bank on behalf of blank forms of B/As for acceptance under this Agreement. Each Canadian the Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender shall bind such Canadian be binding upon the Borrower as fully if completed, signed, endorsed, delivered or deposited by it. The records of the Bank and effectually as if signed such clearing houses shall, in the handwriting absence of and duly issued by manifest error, be conclusively binding on the proper signing officers of such Canadian Borrower. Each Canadian Revolving Lender is hereby authorized 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 B/As required to be accepted and purchased by such Lender. No Canadian Revolving Lender The Bank shall not be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument Drafts or Bankers’ Acceptances except for damages suffered by the gross Borrower caused by the intentional misconduct or negligence or willful misconduct of such Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder and (iv) canceled at their respective maturities. Each Canadian Revolving 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 that apply to such Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either Canadian Borrower, a Canadian Revolving Lender shall cancel all forms of B/A that have been pre-signed or pre-endorsed on behalf of such Canadian Borrower and that are held by such Lender and are not required to be issued in accordance with such Canadian Borrower’s irrevocable notice.
(c) Drafts of a 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 Canadian Revolving Lender or applicable 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 applicable Canadian Borrower.
(d) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 by way of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by a Canadian Revolving Lender shall be a whole multiple of C $100,000, and such face amount shall be in the Canadian Revolving Lenders’ pro rata portions of such Canadian Revolving Borrowing; provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $100,000.
(e) Upon acceptance of a B/A by a Canadian Revolving Lender, such Lender shall purchase, or arrange the purchase of, each B/A from the applicable Canadian Borrower at the Discount Rate for such Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e) in respect of each B/A accepted by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(e)Bank.
(f) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(g) If a Canadian Revolving Lender notifies the Canadian Administrative Agent in writing that it is unable or unwilling to accept Bankers’ Acceptances, such Lender will, instead of accepting and purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period (a “B/A Equivalent Note”), in the form of Exhibit K, issued by such Canadian Borrower in the amount and for the same term as the draft that such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect of such B/A Equivalent Note. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before the maturity date of such B/As, the applicable Canadian Borrower shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on the maturity date of such B/As. If such Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face amount of such B/A as provided in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such Canadian Borrower to make such payment.
(i) Each Canadian Borrower waives presentment for payment and any other defense, in respect of a B/A accepted and purchased by it pursuant to this Agreement, that might exist solely by reason of such B/A being held, at the maturity thereof, by such Lender in its own right and each Canadian Borrower agrees not to claim any days of grace if such Lender as holder sues such Canadian Borrower on for the B/A for payment of the amount payable by such Canadian Borrower thereunder. On the specified at maturity date of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and after such payment, such 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.
(j) If a Canadian Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant under Section 9.04(f), then in respect of any B/A Borrowing, a portion thereof may, at the option of such Lender, be by way of Drafts presented and accepted as Bankers’ Acceptance accepted by such participant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor of such participant for delivery to such participant' Acceptances hereunder.
Appears in 1 contract
Samples: Credit Agreement (Algonquin Power & Utilities Corp.)
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each the Canadian Borrower may request a Multicurrency Revolving Credit Borrowing denominated in Canadian Revolving Borrowing Dollars by presenting drafts for acceptance and purchase as B/As by the Canadian Multicurrency Revolving Credit Lenders.
(b) To facilitate No Contract Period with respect to a B/A Borrowingsto be accepted and, each if applicable, purchased as a Multicurrency Revolving Loan shall extend beyond the Revolving Credit Maturity Date. All B/As and B/A Loans shall be denominated in Canadian Dollars.
(c) To facilitate availment of B/A Loans, the Canadian Borrower hereby appoints each Canadian Multicurrency Revolving Credit Lender as its attorney to sign and endorse on its behalfbehalf (in accordance with a Borrowing Request relating to a B/A Loan pursuant to Section 2.03 or 2.10), in handwriting or by facsimile or mechanical signature as and when deemed necessary by such Multicurrency Revolving Credit Lender, blank forms of B/As in the form requested by such Multicurrency Revolving Credit Lender. In this respect, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each The Canadian Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Multicurrency Revolving Credit Lender on behalf of the Canadian Revolving Lender Borrower shall bind such the Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such the Canadian Borrower. Each Canadian Multicurrency Revolving Credit Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Loan) to issue such B/As endorsed in blank in such face amounts as may be determined by such Multicurrency Revolving Credit Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by such Multicurrency Revolving Credit Lender. No Canadian Multicurrency 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 for the gross negligence or willful wilful misconduct of such Multicurrency Revolving Credit Lender or its officers, employees, agents or representatives. Each Canadian Multicurrency Revolving Credit Lender shall maintain a record record, which shall be made available to the Canadian Borrower upon its request, with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder and (iv) canceled at their respective maturities. Each Canadian Revolving 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 that apply to such Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either the Canadian Borrower, a Canadian Multicurrency Revolving Credit Lender shall cancel all forms of B/A that As which have been pre-signed or pre-endorsed on behalf of such the Canadian Borrower and that are held by such Multicurrency Revolving Credit Lender and are not required to be issued in accordance with such the Canadian Borrower’s irrevocable notice. Alternatively, the Canadian Borrower agrees that, at the request of the Administrative Agent, the Canadian Borrower shall deliver to the Administrative Agent a “depository note” which complies with the requirements of the Depository Bills and Notes Act (Canada), and consents to the deposit of any such depository note in the book-based debt clearance system maintained by the Canadian Depository for Securities.
(cd) Drafts of a the Canadian Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.222.24. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian Multicurrency Revolving Credit Lender or applicable 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 applicable Canadian Borrower.
(de) Promptly following the receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 specifying a Multicurrency Revolving Credit Borrowing by way of B/AsA, the Canadian Administrative Agent shall so advise the Canadian Multicurrency Revolving Credit Lenders and shall advise each Canadian Multicurrency Revolving Credit Lender of the aggregate face amount of the B/As A to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Multicurrency Revolving Credit Lenders). The In the case of Multicurrency Revolving Loans comprised of B/A Loans, the aggregate face amount of the B/As A to be accepted by a Canadian Multicurrency Revolving Credit Lender shall be in a minimum aggregate amount of C$100,000 and shall be a whole multiple of C $C$100,000, and such face amount shall be in the Canadian Multicurrency Revolving Credit Lenders’ pro rata portions of such Canadian Multicurrency Revolving Credit Borrowing; , provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Multicurrency Revolving Credit Lender’s portion of such B/A Borrowing Loan to the nearest C $100,000C$100,000 without reducing the aggregate Multicurrency Revolving Credit Commitments.
(ef) Upon The Canadian Borrower may specify in a Borrowing Request pursuant to Section 2.03 or 2.10 that it desires that any B/A requested by such Borrowing Request be purchased by the Multicurrency Revolving Credit Lenders, in which case the Multicurrency Revolving Credit Lenders shall, upon acceptance of a B/A by a Canadian Multicurrency Revolving Credit Lender, such Lender shall purchase, or arrange the purchase of, each B/A from the applicable Canadian Borrower at the Discount Rate for such Multicurrency Revolving Credit Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such the Canadian Borrower to a Canadian Multicurrency Revolving Credit Lender under this Section 2.22(e2.06(de) in respect of each B/A accepted by such Multicurrency Revolving Credit Lender shall be set off against and deducted from the Discount Proceeds payable by such Multicurrency Revolving Credit Lender under this Section 2.22(e)2.24.
(fg) Each Canadian Multicurrency Revolving Credit Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(gh) If a Canadian Multicurrency Revolving Credit Lender is not a chartered bank under the Bank Act (Canada) or if a Multicurrency Revolving Credit Lender notifies the Canadian Administrative Agent in writing that it is otherwise unable or unwilling to accept Bankers’ Acceptances, such Multicurrency Revolving Credit Lender will, instead of accepting and purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period make an advance (a “B/A Equivalent NoteLoan”), in ) to the form of Exhibit K, issued by such Canadian Borrower in the amount and for the same term as the draft that such Multicurrency Revolving Credit Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Multicurrency Revolving Credit Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect Discount Proceeds of such B/A Equivalent NoteLoan for the account of the Canadian Borrower. The Acceptance Fee payable by Each such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note Loan will bear interest at the same rate that would result if such Multicurrency Revolving Credit Lender had accepted (and been paid an Acceptance Fee) and purchased by such Lender shall be set off against (on a discounted basis at the Discount Proceeds payable by Rate) a Bankers’ Acceptance for the relevant Contract Period (it being the intention of the parties that each such Lender under this Section 2.22(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before Equivalent Loan shall have the maturity date of same economic consequences for the Multicurrency Revolving Credit Lenders and the Canadian Borrower as the Bankers’ Acceptance which such B/As, the applicable Canadian Borrower A Equivalent Loan replaces). All such interest shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth be paid in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover advance on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on A Equivalent Loan is made, and will be deducted from the maturity date of such B/As. If such Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face principal amount of such B/A as provided Equivalent Loan in Section 2.07 the same manner in which the deduction based on the Discount Rate and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to applicable Acceptance Fee of a Bankers’ Acceptance would be deducted from the failure face amount of such Canadian Borrower to make such paymentthe Bankers’ Acceptance.
(i) Each The Canadian Borrower waives presentment for payment and any other defense, defense to payment of any amounts due to a Multicurrency Revolving Credit Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Multicurrency Revolving Credit Lender in its own right right, and each the Canadian Borrower agrees not to claim any days of grace if such Lender Multicurrency Revolving Credit Lender, as holder holder, claims payment from or sues such the Canadian Borrower on the B/A for payment of the amount payable by such the Canadian Borrower thereunder. On the specified maturity date last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through pay the Canadian Administrative Agent, the Canadian Multicurrency Revolving Credit Lender that has accepted and purchased such a B/A or advanced a B/A Equivalent Loan the full face amount of such B/A and or B/A Equivalent Loan, as the case may be, and, after such payment, such the Canadian Borrower shall have no further liability in respect of such B/A and such Multicurrency Revolving Credit Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A.
(j) If a Except as required by any Multicurrency Revolving Credit Lender upon the occurrence of an Event of Default, no B/A Loan may be repaid by the Canadian Revolving Lender grants a participation in a portion Borrower prior to the expiry date of its rights under this Agreement the Contract Period applicable to a participant under Section 9.04(f)such B/A Loan; provided, then in respect of however, that any B/A Borrowing, a portion thereof may, at the option of such Lender, Loan may be by way of Bankers’ Acceptance accepted by such participant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking defeased as provided in favor of such participant for delivery to such participantSection 2.12(a).
Appears in 1 contract
Samples: Credit Agreement (Cbre Group, Inc.)
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each the Canadian Borrower Borrowers may request a Borrowings of Canadian Revolving Borrowing Loans by presenting drafts for acceptance and purchase as B/As by the Canadian Revolving Lenders.
(b) To facilitate availment of B/A Borrowings, the Canadian Borrowers hereby appoint each Canadian Borrower hereby appoints each Canadian Revolving Lender as its attorney their attorney-in-fact to sign and endorse on its their 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. In this respect, it is each Canadian Revolving Lender’s 's responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each The Canadian Borrower recognizes Borrowers recognize and agrees agree that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender shall jointly and severally bind such the Canadian Borrower Borrowers as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such each Canadian Borrower. Each 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 Lender; provided , 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 Revolving Lender or any Affiliate thereof 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 or its Affiliate, as applicable, or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i1) received by it in blank hereunder, (ii2) voided by it for any reason, (iii3) accepted and purchased by it hereunder and (iv4) canceled at their respective maturities. Each Canadian Revolving 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 that which apply to such Canadian Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either the Canadian Borrower Borrowers at the applicable Canadian Borrower’s Borrowers' expense upon request. On request by or on behalf of either the Canadian BorrowerBorrowers, a Canadian Revolving Lender shall cancel all forms of B/A that As which have been pre-signed or pre-endorsed on behalf of such the Canadian Borrower Borrowers and that which are held by such Canadian Lender and are not required to be issued in accordance with such the Canadian Borrower’s Borrowers' irrevocable notice. The Canadian Borrowers agree that, at the request of the Canadian Administrative Agent, they shall deliver to the 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 clearance system maintained by the Canadian Depository for Securities.
(c) Drafts of a the Canadian Borrower Borrowers to be accepted as B/As hereunder shall be signed as set forth in this Section 2.222.14. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian Revolving Lender or applicable the Canadian Borrower Borrowers 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 applicable Canadian BorrowerBorrowers.
(d) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 by way of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by a the Canadian Revolving Lender Lenders in respect of any Borrowing or rollover of B/A Loans shall be a whole multiple of C $100,000, not less than C$500,000 and such face amount shall be in the Canadian Revolving Lenders’ pro rata portions an integral multiple of such Canadian Revolving Borrowing; provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $C$100,000.
(e) Upon acceptance of a B/A by a Canadian Revolving Lender, such Canadian Lender shall purchase, or arrange the purchase of, each such B/A from the applicable Canadian Borrower Borrowers at the Discount Rate for such Canadian Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A Borrowers in which event an Acceptance Fee shall be payable by the Canadian Borrowers to such Canadian Lender in respect of such B/A. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e) in respect of each B/A accepted by such Lender and shall be set off against the Discount Proceeds payable by such Canadian Lender under this Section 2.22(e)Section.
(f) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(g) If a Canadian Revolving Lender is not a chartered bank under the Bank Act (Canada) or if a Canadian Lender notifies the Canadian Administrative Agent in writing that it is otherwise unable or unwilling to accept Bankers’ AcceptancesB/As, such Canadian Lender will, instead of accepting and purchasing Bankers’ AcceptancesB/As, purchase from the applicable Canadian Borrower Borrowers a non-interest bearing note that does not bear interest during the Contract Period denominated in C$ (a “"B/A Equivalent Note”EQUIVALENT NOTE"), in the form of Exhibit K, issued by such the Canadian Borrower Borrowers in the amount and for the same term as the draft that which such Canadian Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Canadian Lender will provide to the Canadian Administrative Agent the proceeds Discount Proceeds of such purchase B/A Equivalent Note for the account of the applicable any Canadian Borrower. The applicable Each such B/A Equivalent Note will bear interest at the same rate which would result if such Canadian 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 B/A Equivalent Note shall have the same economic consequences for the Canadian Lenders and any Canadian Borrower willas the B/A which such B/A Equivalent Note replaces). All such interest shall be paid in advance on the date such B/A Loan is made, upon purchase and will be deducted from the principal amount of such B/A Equivalent Note in the same manner in which the Discount Proceeds of a B/A would be deducted from the face amount of the B/A. Subject to repayment requirements, on the last day of the relevant Contract Period for such B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such any Canadian Borrower the shall be entitled to convert each such B/A Equivalent Note an Acceptance Fee in respect into another type of Loan, or to roll over each such B/A Equivalent Note. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each Note into another B/A Equivalent Note purchased by such Lender shall be set off against Note, all in accordance with the Discount Proceeds payable by such Lender under corresponding provisions of this Section 2.22(g)Agreement which relate to B/As.
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before the maturity date of such B/As, the applicable The Canadian Borrower shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on the maturity date of such B/As. If such Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face amount of such B/A as provided in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such Canadian Borrower to make such payment.
(i) Each Canadian Borrower waives Borrowers waive presentment for payment and any other defense, defense to payment of any amounts due to a Canadian Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Canadian Lender in its own right and each the Canadian Borrower agrees Borrowers agree not to claim any days of grace if such Canadian Lender as holder sues such the Canadian Borrower Borrowers on the B/A for payment of the amount payable by such the Canadian Borrower Borrowers thereunder. On the specified maturity date of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower Borrowers shall jointly and severally pay, through the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and after such payment, such the Canadian Borrower Borrowers 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.
(ji) If a Canadian Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant under Section 9.04(f)9.4, then in respect of any B/A Borrowing, a portion thereof may, at the option of such Canadian Lender, be by way of Bankers’ Acceptance B/A accepted by such participant. In such event, the applicable Canadian Borrower Borrowers shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking B/A indemnity in favor of such participant for delivery to such participant. Notwithstanding anything herein to the contrary, no B/A may be prepaid prior to the maturity date thereof, except as provided in Article VIII.
Appears in 1 contract
Samples: Credit Agreement (Stewart & Stevenson Funding Corp.)
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each Canadian the Borrower may request a Canadian Revolving B/A Borrowing by presenting drafts for acceptance and purchase as B/As by the Canadian Revolving Lenders.
(b) No Contract Period with respect to a B/A Borrowing shall extend beyond the Maturity Date.
(c) To facilitate the availment of B/A Borrowings, each Canadian the Borrower hereby appoints each Canadian Revolving Lender as its attorney to sign and endorse on its behalfbehalf (in accordance with a Notice of Borrowing/Continuation/Conversion relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by such Lender, blank forms of B/As in the form requested by such Lender. In this respect, it is each Canadian Revolving Lender’s 's responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Canadian The Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender on behalf of the Borrower shall bind such Canadian the Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Canadian the Borrower. Each Canadian Revolving Lender is hereby authorized (in accordance with a Notice of Borrowing/ Continuation/Conversion relating to a B/A Borrowing) 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 B/As required to be accepted and purchased by such 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 wilful misconduct of such the Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder hereunder, and (iv) canceled cancelled at their respective maturities. Each Canadian Revolving 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 that apply to such Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either Canadian the Borrower, a Canadian Revolving Lender shall cancel all forms of B/A that which have been pre-signed or pre-endorsed on behalf of such Canadian the Borrower and that which are held by such Lender and are not required to be issued in accordance with such Canadian the Borrower’s 's irrevocable notice. Alternatively, the Borrower agrees that, at the request of the Administrative Agent, the Borrower shall deliver to the Administrative Agent a "depository note" which complies with the requirements of the Depository Bills and Notes Act (Canada), and consents to the deposit of any such depository note in the book-based debt clearance system maintained by the Canadian Depository for Securities.
(cd) Drafts of a Canadian the Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.222.7. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian Revolving Lender or applicable Canadian the Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on the applicable Canadian Borrower.
(de) Promptly following receipt of a Notice of Borrowing/Continuation/Conversion specifying a Borrowing Request or notice of rollover pursuant to Section 2.03 by way of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by the Lenders shall be in a Canadian Revolving Lender minimum aggregate amount of Cdn.$5,000,000 and shall be a whole multiple of C $100,000Cdn.$500,000, and such face amount shall be in the Canadian Revolving Lenders’ ' pro rata portions of such Canadian Revolving Borrowing; Loan, provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Revolving Lender’s 's portion of such B/A Borrowing to the nearest C $100,000Cdn.$100,000 without affecting the aggregate Loan exposure of any Lender.
(ef) Upon acceptance of a B/A by a Canadian Revolving Lender, such Lender shall purchase, or arrange for the purchase of, each B/A from the applicable Canadian Borrower at the Discount Rate for such Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such Canadian the Borrower to a Canadian Revolving Lender under this Section 2.22(e2.3(b) in respect of each B/A accepted by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(e)2.7.
(fg) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(gh) If a Canadian Revolving Lender is not a chartered bank under the Bank Act (Canada) or if a Lender notifies the Canadian Administrative Agent in writing that it is otherwise unable or unwilling to accept Bankers’ Banker's Acceptances, such Lender will, instead of accepting and purchasing Bankers’ Banker's Acceptances, purchase from the applicable Canadian Borrower make a note that does not bear interest during the Contract Period Loan (a “"B/A Equivalent Note”), in Loan") to the form of Exhibit K, issued by such Canadian Borrower in the amount and for the same term as the draft that which such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect Discount Proceeds of such B/A Equivalent NoteLoan for the account of the Borrower. The Acceptance Fee payable by Each such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by Loan will bear interest at the same rate which would result if such Lender had accepted (and been paid an Acceptance Fee) and purchased (on a discounted basis) a Banker's 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 Borrower as the Banker's Acceptance which such B/A Equivalent Loan replaces). All such interest shall be set off against 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 payable by of a Banker's Acceptance would be deducted from the face amount of the Banker's Acceptance. Subject to repayment requirements, on the last day of the relevant Contract Period for such Lender under B/A Equivalent Loan, the Borrower shall be entitled to convert each such B/A Equivalent Loan into another Type of Loan, or to roll over each such B/A Equivalent Loan into another B/A Equivalent Loan, all in accordance with the applicable provisions of this Section 2.22(g)Agreement.
(hi) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, a.m. two Business Days before the maturity date last day of the Contract Period of such B/AsA (or, as applicable, such B/A Equivalent Loan), the applicable Canadian Borrower shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice written Notice of rollover Borrowing/Continuation/Conversion by 12:00 noon on the same day, if such Canadian the Borrower intends to issue B/As or roll over maturing B/A Equivalent Loans, as applicable, on such maturity date last day of the Contract Period to provide for the payment of such maturing B/AsA (or, as applicable, such B/A Equivalent Loan). If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As or roll over maturing B/As or B/A Equivalent Loans, as applicable, on such maturity datelast day of the Contract Period, such Canadian the Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As (or, as applicable, such B/A Equivalent Loans) on the maturity date last day of the Contract Period of such B/AsAs or B/A Equivalent Loans. If such Canadian the Borrower fails to make such payment, such maturing B/As shall(or, subject to satisfaction of the conditions set forth in Section 4.02as applicable, such B/A Equivalent Loans) shall be deemed to have been converted on their maturity date the last day of the Contract Period into a Canadian Prime Rate Loan in an amount equal to the face amount of such B/As or B/A as provided in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such Canadian Borrower to make such paymentEquivalent Loans.
(ij) Each Canadian The Borrower waives presentment for payment and any other defense, defence to payment of any amounts due to a Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Lender in its own right right, and each Canadian the Borrower agrees not to claim any days of grace if such Lender Lender, as holder holder, sues such Canadian the Borrower on the B/A for payment of the amount payable by such Canadian the Borrower thereunder. On the specified maturity date last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through pay the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and and, after such payment, such Canadian the 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.
(jk) If a Canadian Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant Participant under Section 9.04(f9.4(d), then then, in respect of any B/A Borrowing, a portion thereof may, at the option of such Lender, be by way of Bankers’ Acceptance Banker's Acceptances accepted by such participantParticipant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Banker's Acceptance undertaking in favor favour of such participant Participant, having terms substantially similar to this Section 2.7, for delivery to such participantParticipant.
(l) Except as required by any Lender upon the occurrence of an Event of Default, no B/A Borrowing may be repaid by the Borrower prior to the expiry date of the Contract Period applicable to such B/A Borrowing; provided, however, that the Borrower may defease any B/A Borrowing by depositing with the Administrative Agent an amount that is sufficient to repay such B/A Borrowing on the expiry date of the Contract Period applicable to such B/A Borrowing.
Appears in 1 contract
Samples: Tranche a Exit Facility Agreement (Microcell Telecommunications Inc)
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each the Canadian Borrower may request a Canadian Revolving Borrowing by presenting drafts for acceptance and and, if applicable, purchase as B/As by the Canadian Revolving Lenders.
(b) To facilitate No Contract Period with respect to a B/A Borrowingsto be accepted and, each 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 Revolving 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 Lender, blank forms of B/As in the form requested by such Lender. In this respect, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each The Canadian Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender shall bind such the Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such the Canadian Borrower. Each Canadian Revolving Lender is hereby authorized 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 B/As required to be accepted and purchased by such 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 Lender or its officers, employees, agents or representativesrepresentatives as determined by a court of competent jurisdiction by final and nonappealable judgment. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iiiii) accepted and purchased by it hereunder and (iviii) canceled at their respective maturities. Each Canadian Revolving 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 that which apply to such Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either the Canadian Borrower, a Canadian Revolving Lender shall cancel all forms of B/A that which have been pre-signed or pre-endorsed on behalf of such the Canadian Borrower and that which are held by such Lender and are not required to be issued in accordance with such the Canadian Borrower’s irrevocable notice. At the discretion of a Lender, B/As 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 and the Depository Bills and Notes Act (Canada). All Depository Bills so issued shall be governed by the provisions of this Section 2.18.
(cd) Drafts of a the Canadian Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.222.18. Notwithstanding that any person Person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian Revolving Lender of the Lenders or applicable 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 applicable Canadian Borrower.
(de) Promptly following receipt of a Borrowing Request Notice of Borrowing, continuation or notice of rollover pursuant to Section 2.03 by way Conversion of B/As, the Canadian applicable Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by a Canadian Revolving Lender shall be a whole in an integral multiple of C $100,000, 100,000 and such face amount shall be in the Canadian Revolving Lenders’ pro rata portions each Lender’s Pro Rata Share of such Canadian Revolving Borrowing, and each such Borrowing shall be no less than $500,000; provided provided, that the Canadian 84 Administrative Agent may may, in its sole discretion discretion, increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $100,000.
(ef) Upon acceptance If the Canadian Borrower specifies in a Notice of Borrowing or Conversion or continuation pursuant to Section 2.4(a) or Section 2.4(b), respectively, that such Notice of Borrowing or Conversion or continuation is a request for B/A by a A’s, then the Canadian Revolving Lender, such Lender Facility Lenders shall purchase, or arrange the purchase of, each B/A from the applicable Canadian Borrower at the Discount Rate for such Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian such Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such the Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e2.8(d) in respect of each B/A accepted by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(e)2.18.
(fg) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(gh) If a Canadian Revolving Lender notifies the Canadian Administrative Agent in writing that it is unable or unwilling to accept Bankers’ Acceptances, such Lender will, instead of accepting and and, if applicable, purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period make an advance (a “B/A Equivalent NoteAdvance”), in ) to the form of Exhibit K, issued by such Canadian applicable Borrower in the amount and for the same term as the draft that such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect Discount Proceeds of such B/A Equivalent NoteAdvance for the account of the Canadian Borrower. The Acceptance Fee payable by Each such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by Advance will bear interest at the same rate that would result if such Lender shall be set off against had accepted (and been paid an Acceptance Fee) and purchased (on a discounted basis at the Discount Proceeds payable by Rate) a Bankers’ Acceptance for the relevant Contract Period (it being the intention of the parties that each such Lender under this Section 2.22(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before Equivalent Advance shall have the maturity date of same economic consequences for the Lenders and the Canadian Borrower as the Bankers’ Acceptance which such B/As, the applicable Canadian Borrower A Equivalent Advance replaces). All such interest shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth be paid in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover advance on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on A Equivalent Advance is made, and will be deducted from the maturity date of such B/As. If such Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face principal amount of such B/A as provided Equivalent Advance in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to same manner in which the failure Discount Proceeds of such Canadian Borrower to make such paymenta Bankers’ Acceptance would be deducted from the face amount of the Bankers’ Acceptance.
(i) Each The Canadian Borrower waives presentment for payment and any other defense, defense to payment of any amounts due to a Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Lender in its own right and each the Canadian Borrower agrees not to claim any days of grace if such Lender as holder sues such the Canadian Borrower on the B/A for payment of the amount payable by such the Canadian Borrower thereunder. On the specified maturity date last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through either pay the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A (subject to Section 2.18(j) below and Section 2.5(b)) or provide for a continuation as contemplated by Section 2.4(b), and after such payment, such the 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.
(j) If a Except as required by any Lender upon the occurrence of an Event of Default, no B/A Advance may be repaid by the Canadian Revolving Lender grants a participation in a portion Borrower prior to the expiry date of its rights under this Agreement the Contract Period applicable to a participant under Section 9.04(f)such B/A Advance; provided, then in respect of however, that any B/A Borrowing, a portion thereof may, at the option of such Lender, or B/A Equivalent Advance may be defeased by way of Bankers’ Acceptance accepted by such participantproviding cash collateral in accordance with Section 2.5(d). In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor of such participant for delivery to such participant.85
Appears in 1 contract
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each the Canadian Borrower may request a Canadian Revolving Borrowing by presenting drafts for acceptance and purchase as B/As by the Canadian Revolving Lenders.
(b) No Contract Period with respect to a B/A to be accepted and purchased under the Canadian Revolving Credit and no Contract Period with respect to a B/A to be accepted and purchased under the Term Credit shall extend beyond the Maturity Date.
(c) To facilitate availment of B/A Borrowings, each Canadian Borrower hereby appoints each Canadian Revolving Lender as its attorney to sign and endorse on its behalfbehalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by such Canadian Lender, blank forms of B/As in the form requested by such Canadian Lender. In this respect, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Canadian Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender on behalf of the Canadian Borrower shall bind such the Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such the Canadian Borrower. Each Canadian Revolving Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by 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 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 wilful misconduct of such the Canadian Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder hereunder, and (iv) canceled cancelled at their respective maturities. Each Canadian Revolving 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 that apply to such Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either the Canadian Borrower, a Canadian Revolving Lender shall cancel all forms of B/A that which have been pre-signed or pre-endorsed on behalf of such the Canadian Borrower and that which are held by such Canadian Lender and are not required to be issued in accordance with such the Canadian Borrower’s irrevocable notice. Alternatively, each Canadian Borrower agrees that, at the request of the Canadian Administrative Agent, the Canadian Borrower shall deliver to the 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.
(cd) Drafts of a the Canadian Borrower to be accepted as B/As hereunder shall be signed as set forth out in this Section 2.222.11. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian Revolving Lender or applicable 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 applicable Canadian Borrower.
(de) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 specifying a Borrowing by way of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The In the case of B/A Borrowings under the Canadian Revolving Credit, the aggregate face amount of the B/As to be accepted by the Canadian Lenders shall be in a Canadian Revolving Lender minimum aggregate amount of Cdn.$5,000,000 and shall be a whole multiple of C $100,000Cdn.$1,000,000, and such face amount shall be in the Canadian Revolving Credit Lenders’ pro rata portions of such the Canadian Revolving Borrowing; , provided that the Canadian Administrative Agent may may, in its sole discretion discretion, increase or reduce any Canadian Revolving Credit Lender’s portion of such B/A Borrowing to the nearest C $100,000Cdn.$100,000 without reducing the overall Canadian Revolving Credit Commitments. In the case of B/A Borrowings under the Term Credit, the aggregate face amount of the B/As to be accepted by the Term Credit Lenders shall be in a minimum aggregate amount of Cdn.$5,000,000 and shall be a whole multiple of Cdn.$1,000,000, and such face amount shall be in the Term Credit Lenders’ pro rata portions of such Borrowing, provided that the Canadian Administrative Agent may, in its sole discretion, increase or reduce any Term Credit Lender’s portion of such B/A Borrowing to the nearest Cdn.$100,000 without reducing the overall Term Credit Commitments.
(ef) Upon acceptance of a B/A by a Canadian Revolving Lender, such Canadian Lender shall purchase, or arrange for the purchase of, each B/A from the applicable 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 the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such the Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e) 2.5 in respect of each B/A accepted by such Canadian Lender shall be set off against the Discount Proceeds payable by such Canadian Lender under this Section 2.22(e)2.11.
(fg) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(gh) If a Canadian Revolving Lender is not a chartered bank under the Bank Act (Canada) or if a Canadian Lender notifies the Canadian Administrative Agent in writing that it is otherwise unable or unwilling to accept Bankers’ Acceptances, such Canadian Lender will, instead of accepting and purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower make a note that does not bear interest during the Contract Period Loan (a “B/A Equivalent NoteLoan”), in ) to the form of Exhibit K, issued by such Canadian Borrower in the amount and for the same term as the draft that which such Canadian Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Canadian Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect Discount Proceeds of such B/A Equivalent NoteLoan for the account of the Canadian Borrower. The Acceptance Fee payable by Each such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note Loan will bear interest at the same rate which would result if such Canadian Lender had accepted (and been paid an Acceptance Fee) and purchased by (on a discounted basis) a Bankers’ Acceptance for the relevant Contract Period (it being the intention of the parties that each such Lender B/A Equivalent Loan shall have the same economic consequences for the Canadian Lenders and the Canadian Borrower as the Bankers’ Acceptance which such B/A Equivalent Loan replaces). All such interest shall be set off against paid in advance on the date such B/A 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 payable by of a Bankers’ Acceptance would be deducted from the face amount of the Bankers’ Acceptance. Subject to repayment requirements, on the last day of the relevant Contract Period for such Lender under B/A Equivalent Loan, the Canadian Borrower shall be entitled to convert each such B/A Equivalent Loan into another type of Loan, or to roll over each such B/A Equivalent Loan into another B/A Equivalent Loan, all in accordance with the applicable provisions of this Section 2.22(g)Agreement.
(hi) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, 11:00 a.m. two Business Days before the maturity date last day of the Contract Period of such B/AsA Borrowing, the applicable Canadian Borrower shall notify the Canadian Administrative Agent at if the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such Canadian Borrower intends to issue B/As on such maturity date last day of the Contract Period to provide for the payment of such maturing B/AsA Borrowing. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity datelast day of the Contract Period, such the Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As A Borrowing on the maturity date last day of such B/Asthe Contract Period of thereof. If such the Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, shall be deemed to have been converted on their maturity date the last day of the Contract Period into a Canadian Prime Rate Loan in an amount equal to the face amount of such B/A as provided in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such Canadian Borrower to make such paymentAs.
(ij) Each The Canadian Borrower waives presentment for payment and any other defense, defence to payment of any amounts due to a Canadian Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Canadian Lender in its own right right, and each the Canadian Borrower agrees not to claim any days of grace if such Lender Canadian Lender, as holder holder, sues such the Canadian Borrower on the B/A for payment of the amount payable by such the Canadian Borrower thereunder. On the specified maturity date last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through pay the Canadian Administrative Agent, Agent for the account of the Canadian Revolving Lender Lenders that has have accepted and purchased such B/A the full face amount of such B/A and and, after such payment, such the Canadian Borrower shall have no further liability in respect of such B/A and such Lender Canadian Lenders shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A.
(jk) If a Canadian Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant Participant under Section 9.04(f9.4(e), then then, in respect of any B/A Borrowing, a portion thereof may, at the option of such Canadian Lender, be by way of Bankers’ Acceptance accepted by such participantParticipant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the applicable Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor favour of such participant Participant for delivery to such participant.
(l) Except as required by any Canadian Lender upon the occurrence of an Event of Default, no B/A Borrowing may be repaid by the Canadian Borrower prior to the expiry date of the Contract Period applicable to such B/A Borrowing; provided, however, that the Canadian Borrower may defease any B/A Borrowing by depositing with the Canadian Administrative Agent an amount that is sufficient to repay the full face amount of such B/A Borrowing on the expiry date of the Contract Period applicable to such B/A Borrowing.
Appears in 1 contract
Samples: Senior Facilities Credit Agreement (Tim Hortons Inc.)
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each Canadian the Borrower may request a Canadian Revolving Borrowing by presenting drafts for acceptance and purchase as B/As by the Canadian Revolving Lenders.
(b) No Contract Period with respect to a B/A to be accepted and purchased under the Revolving Credit shall extend beyond the Maturity Date.
(c) To facilitate B/A Borrowings, each Canadian the Borrower hereby appoints each Canadian Revolving Lender as its attorney to sign and endorse on its behalfbehalf (only in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by such Lender, blank forms of B/As in the form requested by such Lender. In this respect, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Canadian The Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender on behalf of the Borrower shall bind such Canadian the Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Canadian the Borrower. Each Canadian Revolving Lender is hereby authorized (only in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by such Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by such 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 to the extent caused by the gross negligence or willful wilful misconduct of such the Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder and (iv) canceled at their respective maturities. Each Canadian Revolving 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 that apply to such Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either Canadian Borrower, a Canadian Revolving Lender shall cancel all forms of B/A that have been pre-signed or pre-endorsed on behalf of such Canadian Borrower and that are held by such Lender and are not required to be issued in accordance with such Canadian Borrower’s irrevocable notice.
(c) Drafts of a 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 Canadian Revolving Lender or applicable 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 applicable Canadian Borrower.
(d) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 by way of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by a Canadian Revolving Lender shall be a whole multiple of C $100,000, and such face amount shall be in the Canadian Revolving Lenders’ pro rata portions of such Canadian Revolving Borrowing; provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $100,000.
(e) Upon acceptance of a B/A by a Canadian Revolving Lender, such Lender shall purchase, or arrange the purchase of, each B/A from the applicable Canadian Borrower at the Discount Rate for such Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e) in respect of each B/A accepted by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(e).
(f) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(g) If a Canadian Revolving Lender notifies the Canadian Administrative Agent in writing that it is unable or unwilling to accept Bankers’ Acceptances, such Lender will, instead of accepting and purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period (a “B/A Equivalent Note”), in the form of Exhibit K, issued by such Canadian Borrower in the amount and for the same term as the draft that such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect of such B/A Equivalent Note. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before the maturity date of such B/As, the applicable Canadian Borrower shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on the maturity date of such B/As. If such Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face amount of such B/A as provided in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such Canadian Borrower to make such payment.
(i) Each Canadian Borrower waives presentment for payment and any other defense, in respect of a B/A accepted and purchased by it pursuant to this Agreement, that might exist solely by reason of such B/A being held, at the maturity thereof, by such Lender in its own right and each Canadian Borrower agrees not to claim any days of grace if such Lender as holder sues such Canadian Borrower on the B/A for payment of the amount payable by such Canadian Borrower thereunder. On the specified maturity date of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and after such payment, such 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.
(j) If a Canadian Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant under Section 9.04(f), then in respect of any B/A Borrowing, a portion thereof may, at the option of such Lender, be by way of Bankers’ Acceptance accepted by such participant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor of such participant for delivery to such participant.,
Appears in 1 contract
Samples: Credit Agreement
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each Canadian the Borrower may request a Canadian Revolving Borrowing by presenting drafts for acceptance and purchase as B/As by the Canadian Revolving Lenders.
(b) No Contract Period with respect to a B/A to be accepted and purchased under the Credit shall extend beyond the Maturity Date.
(c) To facilitate availment of B/A Borrowings, each Canadian the Borrower hereby appoints each Canadian Revolving Lender as its attorney to sign and endorse on its behalfbehalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by such Lender, blank forms of B/As in the form requested by such Lender. In this respect, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Canadian The Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender on behalf of the Borrower shall bind such Canadian the Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Canadian the Borrower. Each Canadian Revolving Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by such Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by such 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 wilful misconduct of such the Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder hereunder, and (iv) canceled cancelled at their respective maturities. Each Canadian Revolving 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 that apply to such Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either Canadian the Borrower, a Canadian Revolving Lender shall cancel all forms of B/A that which have been pre-signed or pre-endorsed on behalf of such Canadian the Borrower and that which are held by such Lender and are not required to be issued in accordance with such Canadian the Borrower’s irrevocable notice. Alternatively, the Borrower agrees that, at the request of a Lender, the Borrower shall deliver to such Lender 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.
(cd) Drafts of a Canadian the Borrower to be accepted as B/As hereunder shall be signed as set forth out in this Section 2.222.11. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian Revolving Lender or applicable Canadian the Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on the applicable Canadian Borrower.
(de) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 by way In the case of B/AsA Borrowings, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which Lenders shall be identical for all Canadian Revolving Lenders). The in a minimum aggregate face amount of the B/As to be accepted by a Canadian Revolving Lender Cdn.$5,000,000 and shall be a whole multiple of C $100,000Cdn.$1,000,000, and such face amount shall be in the Canadian Revolving Lenders’ pro rata portions of such Canadian Revolving Borrowing; , provided that the Canadian Administrative Agent may Lenders may, in its their sole discretion discretion, increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $100,000Cdn.$100,000 without reducing the overall Commitments.
(ef) Upon acceptance of a B/A by a Canadian Revolving Lender, such Lender shall purchase, or arrange for the purchase of, each B/A from the applicable Canadian Borrower at the Discount Rate for such Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent Lenders the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such Canadian the Borrower to a Canadian Revolving Lender under this Section 2.22(e) 2.5 in respect of each B/A accepted by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(e)2.11.
(fg) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(gh) If a Canadian Revolving Lender is not a chartered bank under the Bank Act (Canada) or if a Lender notifies the Canadian Administrative Agent Borrower in writing that it is otherwise unable or unwilling to accept Bankers’ Acceptances, such Lender will, instead of accepting and purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower make a note that does not bear interest during the Contract Period Loan (a “B/A Equivalent NoteLoan”), in ) to the form of Exhibit K, issued by such Canadian Borrower in the amount and for the same term as the draft that which such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to Loan will bear interest at the Canadian Administrative Agent same rate which would result if such Lender had accepted (and been paid an Acceptance Fee) and purchased (on behalf a discounted basis) a Bankers’ Acceptance for the relevant Contract Period (it being the intention of the Canadian Revolving Lender parties that purchased from each such Canadian Borrower the B/A Equivalent Note an Loan shall have the same economic consequences for the Lenders and the Borrower as the Bankers’ Acceptance Fee which such B/A Equivalent Loan replaces). All such interest shall be paid in respect advance on the date such B/A Loan is made, and will be deducted from the principal amount of such B/A Equivalent NoteLoan in the same manner in which the Discount Proceeds of a Bankers’ Acceptance would be deducted from the face amount of the Bankers’ Acceptance. The Acceptance Fee payable by Subject to repayment requirements, on the last day of the relevant Contract Period for such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by such Lender Loan, the Borrower shall be set off against entitled to convert each such B/A Equivalent Loan into another type of Loan, or to roll over each such B/A Equivalent Loan into another B/A Equivalent Loan, all in accordance with the Discount Proceeds payable by such Lender under applicable provisions of this Section 2.22(g)Agreement.
(hi) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, 11:00 a.m. two Business Days before the maturity date last day of the Contract Period of such B/AsA Borrowing, the applicable Canadian Borrower shall notify the Canadian Administrative Agent at Lenders if the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such Canadian Borrower intends to issue B/As on such maturity date last day of the Contract Period to provide for the payment of such maturing B/AsA Borrowing. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent Lenders of its intention to issue B/As on such maturity datelast day of the Contract Period, such Canadian the Borrower shall provide payment to the Canadian Administrative Agent Lenders on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As A Borrowing on the maturity date last day of such B/Asthe Contract Period of thereof. If such Canadian the Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, shall be deemed to have been continued on the last day of the Contract Period with a Contract Period of 30 days, or, if there are fewer than 30 days between the last day of the Contract Period and the Maturity Date, converted on their maturity date the last day of the Contract Period into a Canadian Prime Rate Loan in an amount equal to the face amount of such B/A as provided in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such Canadian Borrower to make such paymentAs.
(ij) Each Canadian The Borrower waives presentment for payment and any other defense, defence to payment of any amounts due to a Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Lender in its own right right, and each Canadian the Borrower agrees not to claim any days of grace if such Lender Lender, as holder holder, sues such Canadian the Borrower on the B/A for payment of the amount payable by such Canadian the Borrower thereunder. On the specified maturity date last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through the Canadian Administrative Agent, the Canadian Revolving pay any Lender that has accepted and purchased such B/A the full face amount of such B/A and and, after such payment, such Canadian the 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.
(jk) If a Canadian Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant Participant under Section 9.04(f9.4(e), then then, in respect of any B/A Borrowing, a portion thereof may, at the option of such Lender, be by way of Bankers’ Acceptance accepted by such participantParticipant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian Revolving applicable Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor favour of such participant Participant for delivery to such participant.
(l) Except as required by any Lender upon the occurrence of an Event of Default, no B/A Borrowing may be repaid by the Borrower prior to the expiry date of the Contract Period applicable to such B/A Borrowing; provided, however, that the Borrower may defease any B/A Borrowing by depositing with the Lenders an amount that is sufficient to repay the full face amount such B/A Borrowing on the expiry date of the Contract Period applicable to such B/A Borrowing.
Appears in 1 contract
Samples: Bridge Facility Credit Agreement (Tim Hortons Inc.)
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each the Canadian Borrower may request a Canadian Revolving Borrowing by presenting drafts for acceptance and and, if applicable, purchase as B/As by the Canadian Revolving Lenders.
(b) To facilitate No Contract Period with respect to a B/A Borrowingsto be accepted and, each 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 Revolving 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 Lender, blank forms of B/As in the form requested by such Lender. In this respect, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each The Canadian Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender shall bind such the Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such the Canadian Borrower. Each Canadian Revolving Lender is hereby authorized 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 B/As required to be accepted and purchased by such 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 Lender or its officers, employees, agents or representativesrepresentatives as determined by a court of competent jurisdiction by final and nonappealable judgment. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iiiii) accepted and purchased by it hereunder and (iviii) canceled at their respective maturities. Each Canadian Revolving 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 that which apply to such Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either the Canadian Borrower, a Canadian Revolving Lender shall cancel all forms of B/A that which have been pre-signed or pre-endorsed on behalf of such the Canadian Borrower and that which are held by such Lender and are not required to be issued in accordance with such the Canadian Borrower’s irrevocable notice. At the discretion of a Lender, B/As 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 and the Depository Bills and Notes Act (Canada). All Depository Bills so issued shall be governed by the provisions of this Section 2.18.
(cd) Drafts of a the Canadian Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.222.18. Notwithstanding that any person Person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian Revolving Lender of the Lenders or applicable 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 applicable Canadian Borrower.
(d) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 by way of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by a Canadian Revolving Lender shall be a whole multiple of C $100,000, and such face amount shall be in the Canadian Revolving Lenders’ pro rata portions of such Canadian Revolving Borrowing; provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $100,000.
(e) Upon acceptance of a B/A by a Canadian Revolving Lender, such Lender shall purchase, or arrange the purchase of, each B/A from the applicable Canadian Borrower at the Discount Rate for such Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e) in respect of each B/A accepted by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(e).
(f) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(g) If a Canadian Revolving Lender notifies the Canadian Administrative Agent in writing that it is unable or unwilling to accept Bankers’ Acceptances, such Lender will, instead of accepting and purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period (a “B/A Equivalent Note”), in the form of Exhibit K, issued by such Canadian Borrower in the amount and for the same term as the draft that such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect of such B/A Equivalent Note. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before the maturity date of such B/As, the applicable Canadian Borrower shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on the maturity date of such B/As. If such Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face amount of such B/A as provided in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such Canadian Borrower to make such payment.
(i) Each Canadian Borrower waives presentment for payment and any other defense, in respect of a B/A accepted and purchased by it pursuant to this Agreement, that might exist solely by reason of such B/A being held, at the maturity thereof, by such Lender in its own right and each Canadian Borrower agrees not to claim any days of grace if such Lender as holder sues such Canadian Borrower on the B/A for payment of the amount payable by such Canadian Borrower thereunder. On the specified maturity date of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and after such payment, such 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.
(j) If a Canadian Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant under Section 9.04(f), then in respect of any B/A Borrowing, a portion thereof may, at the option of such Lender, be by way of Bankers’ Acceptance accepted by such participant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor of such participant for delivery to such participant.
Appears in 1 contract
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each the Canadian Borrower may request a Canadian Revolving Borrowing by presenting drafts for acceptance and and, if applicable, purchase as B/As by the Canadian Revolving Lenders.
(b) To facilitate No Contract Period with respect to a B/A Borrowingsto be accepted and, each 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 Revolving 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 Lender, blank forms of B/As in the form requested by such Lender. In this respect, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each The Canadian Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender shall bind such the Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such the Canadian Borrower. Each Canadian Revolving Lender is hereby authorized 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 B/As required to be accepted and purchased by such 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 Lender or its officers, employees, agents or representativesrepresentatives as determined by a court of competent jurisdiction by final and nonappealable judgment. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iiiii) accepted and purchased by it hereunder and (iviii) canceled at their respective maturities. Each Canadian Revolving 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 that which apply to such Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either the Canadian Borrower, a Canadian Revolving Lender shall cancel all forms of B/A that which have been pre-signed or pre-endorsed on behalf of such the Canadian Borrower and that which are held by such Lender and are not required to be issued in accordance with such the Canadian Borrower’s irrevocable notice. At the discretion of a Lender, B/As 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 and the Depository Bills and Notes Act (Canada). All Depository Bills so issued shall be governed by the provisions of this Section 2.18.
(cd) Drafts of a the Canadian Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.222.18. Notwithstanding that any person Person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian Revolving Lender of the Lenders or applicable 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 applicable Canadian Borrower.
(de) Promptly following receipt of a Borrowing Request Notice of Borrowing, continuation or notice of rollover pursuant to Section 2.03 by way Conversion of B/As, the Canadian applicable Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by a Canadian Revolving Lender shall be a whole in an integral multiple of C $100,000, 100,000 and such face amount shall be in the Canadian Revolving Lenders’ pro rata portions each Lender’s Pro Rata Share of such Canadian Revolving Borrowing, and each such Borrowing shall be no less than $500,000; provided provided, that the Canadian Administrative Agent may may, in its sole discretion discretion, increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $100,000.
(ef) Upon acceptance If the Canadian Borrower specifies in a Notice of Borrowing or Conversion or continuation pursuant to Section 2.4(a) or Section 2.4(b), respectively, that such Notice of Borrowing or Conversion or continuation is a request for B/A by a A’s, then the Canadian Revolving Lender, such Lender Facility Lenders shall purchase, or arrange the purchase of, each B/A from the applicable Canadian Borrower at the Discount Rate for such Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian such Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such the Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e2.8(d) in respect of each B/A accepted by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(e)2.18.
(fg) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(gh) If a Canadian Revolving Lender notifies the Canadian Administrative Agent in writing that it is unable or unwilling to accept Bankers’ Acceptances, such Lender will, instead of accepting and and, if applicable, purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period make an advance (a “B/A Equivalent NoteAdvance”), in ) to the form of Exhibit K, issued by such Canadian applicable Borrower in the amount and for the same term as the draft that such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect Discount Proceeds of such B/A Equivalent NoteAdvance for the account of the Canadian Borrower. The Acceptance Fee payable by Each such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by Advance will bear interest at the same rate that would result if such Lender shall be set off against had accepted (and been paid an Acceptance Fee) and purchased (on a discounted basis at the Discount Proceeds payable by Rate) a Bankers’ Acceptance for the relevant Contract Period (it being the intention of the parties that each such Lender under this Section 2.22(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before Equivalent Advance shall have the maturity date of same economic consequences for the Lenders and the Canadian Borrower as the Bankers’ Acceptance which such B/As, the applicable Canadian Borrower A Equivalent Advance replaces). All such interest shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth be paid in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover advance on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on A Equivalent Advance is made, and will be deducted from the maturity date of such B/As. If such Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face principal amount of such B/A as provided Equivalent Advance in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to same manner in which the failure Discount Proceeds of such Canadian Borrower to make such paymenta Bankers’ Acceptance would be deducted from the face amount of the Bankers’ Acceptance.
(i) Each The Canadian Borrower waives presentment for payment and any other defense, defense to payment of any amounts due to a Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Lender in its own right and each the Canadian Borrower agrees not to claim any days of grace if such Lender as holder sues such the Canadian Borrower on the B/A for payment of the amount payable by such the Canadian Borrower thereunder. On the specified maturity date last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through either pay the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A (subject to Section 2.18(j) below and Section 2.5(b)) or provide for a continuation as contemplated by Section 2.4(b), and after such payment, such the 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.
(j) If a Except as required by any Lender upon the occurrence of an Event of Default, no B/A Advance may be repaid by the Canadian Revolving Lender grants a participation in a portion Borrower prior to the expiry date of its rights under this Agreement the Contract Period applicable to a participant under Section 9.04(f)such B/A Advance; provided, then in respect of however, that any B/A Borrowing, a portion thereof may, at the option of such Lender, or B/A Equivalent Advance may be by way of Bankers’ Acceptance accepted by such participant. In such event, the applicable Canadian Borrower defeased as provided in Section 2.5(b)(ii) and shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute be defeased as required in Section 2.5(c) and deliver a form of Bankers’ Acceptance undertaking in favor of such participant for delivery to such participant(d).
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Bankers’ Acceptances. (a) Subject to the terms and --------------------- conditions of this Agreement, each the Canadian Borrower may request a Canadian C $ Revolving Borrowing by presenting drafts for acceptance and purchase as B/As by the Canadian C $ Revolving Lenders.
(b) To facilitate B/A Borrowings, each the Canadian Borrower hereby appoints each Canadian C $ Revolving 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 Lender, blank forms of B/As in the form requested by such Lender. In this respect, it is each Canadian C $ Revolving Lender’s 's responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each The Canadian Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian C $ Revolving Lender shall bind such the Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such the Canadian Borrower. Each Canadian C $ Revolving Lender is hereby authorized 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 B/As required to be accepted and purchased by such Lender. No Canadian C $ 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 wilful misconduct of such Lender or its officers, employees, agents or representatives. Each Canadian C $ Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder and (iv) canceled at their respective maturities. Each Canadian C $ Revolving 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 that apply to such Lender. Each Canadian C $ Revolving Lender agrees to provide a copy of such records to either the Canadian Borrower at the applicable Canadian Borrower’s 's expense upon request. On request by or on behalf of either the Canadian Borrower, a Canadian C $ Revolving Lender shall cancel all forms of B/A that have been pre-signed or pre-endorsed on behalf of such the Canadian Borrower and that are held by such Lender and are not required to be issued in accordance with such the Canadian Borrower’s 's irrevocable notice.
(c) Drafts of a the Canadian Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.222.21. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian C $ Revolving Lender or applicable 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 applicable Canadian Borrower.
(d) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 by way of B/As, the Canadian Administrative Agent shall so advise the Canadian C $ Revolving Lenders and shall advise each Canadian C $ Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian C $ Revolving Lenders). The aggregate face amount of the B/As to be accepted by a Canadian C $ Revolving Lender shall be a whole multiple of C $100,000, and such face amount shall be in the Canadian C $ Revolving Lenders’ ' pro rata portions of such Canadian C $ Revolving Borrowing; provided that the Canadian Administrative Agent may in its sole -------- discretion increase or reduce any Canadian C $ Revolving Lender’s 's portion of such B/A Borrowing to the nearest C $100,000.
(e) Upon acceptance of a B/A by a Canadian C $ Revolving Lender, such Lender shall purchase, or arrange the purchase of, each B/A from the applicable Canadian Borrower at the Discount Rate for such Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian C $ Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian C $ Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such the Canadian Borrower to a Canadian C $ Revolving Lender under this Section 2.22(e2.21(e) in respect of each B/A accepted by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(e2.21(e).
(f) Each Canadian C $ Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(g) If a Canadian C $ Revolving Lender notifies the Canadian Administrative Agent in writing that it is unable or unwilling to accept Bankers’ ' Acceptances, such Lender will, instead of accepting and purchasing Bankers’ ' Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period (a “"B/A Equivalent Note”"), in the form of Exhibit K, issued ------------------- by such the Canadian Borrower in the amount and for the same term as the draft that such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ ' Acceptances are discounted pursuant to this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian C $ Revolving Lender that purchased from such the Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect of such B/A Equivalent Note. The Acceptance Fee payable by such the Canadian Borrower to a Canadian C $ Revolving Lender under this Section 2.22(g2.21(g) in respect of each B/A Equivalent Note purchased by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(g2.21(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before the maturity date of such B/As, the applicable Canadian Borrower shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s 's address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such the Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such the Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian C $ Revolving Lenders of an amount equal to the aggregate face amount of such B/As on the maturity date of such B/As. If such the Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face amount of such B/A as provided in Section 2.07 and such the Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian C $ Revolving Lender due to the failure of such the Canadian Borrower to make such payment.
(i) Each The Canadian Borrower waives presentment for payment and any other defense, in respect of a B/A accepted and purchased by it pursuant to this Agreement, that might exist solely by reason of such B/A being held, at the maturity thereof, by such Lender in its own right and each the Canadian Borrower agrees not to claim any days of grace if such Lender as holder sues such the Canadian Borrower on the B/A for payment of the amount payable by such the Canadian Borrower thereunder. On the specified maturity date of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through the Canadian Administrative Agent, the Canadian C $ Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and after such payment, such the 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.
(j) If a Canadian C $ Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant under Section 9.04(f), then in respect of any B/A Borrowing, a portion thereof may, at the option of such Lender, be by way of Bankers’ ' Acceptance accepted by such participant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian C $ Revolving Lender granting the participation execute and deliver a form of Bankers’ ' Acceptance undertaking in favor of such participant for delivery to such participant.
Appears in 1 contract
Samples: Credit Agreement (United Rentals North America Inc)
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each Canadian Borrower may request a Borrowing denominated in Canadian Revolving Borrowing dollars by presenting drafts for acceptance and and, if applicable, purchase as B/As by the Canadian Revolving Lenders.
(b) To facilitate No Contract Period with respect to a B/A Borrowingsto 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, each Canadian Borrower hereby appoints each Canadian Revolving 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. In this respect, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Canadian Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender shall bind such Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Canadian Borrower. Each 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 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 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 Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iiiii) accepted and purchased by it hereunder and (iviii) canceled at their respective maturities. Each Canadian Revolving 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 that which apply to such Canadian Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either the Canadian Borrower, a Canadian Revolving Lender shall cancel all forms of B/A that which have been pre-signed or pre-endorsed on behalf of such a Canadian Borrower and that which are held by such Canadian Lender and are not required to be issued in accordance with such 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.
(cd) Drafts of a 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 Revolving Lender Lenders or the applicable 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 applicable such Canadian Borrower.
(de) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 by way borrowing, continuation or conversion of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by a Canadian Revolving Lender shall be a whole in an integral multiple of C $100,000, C$100,000 and such face amount shall be in the each Canadian Revolving Lenders’ Lender’s pro rata portions portion of such Canadian Revolving Borrowing; provided provided, that the Canadian Administrative Agent may may, in its sole discretion discretion, increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $C$100,000.
(ef) Upon acceptance The applicable Canadian Borrower may specify in a notice of a borrowing or conversion or continuation pursuant to Section 2.03 or Section 2.10, respectively, that it desires that any B/A As requested by a such notice be purchased by the Canadian Revolving LenderLenders, such Lender in which case the Canadian Lenders shall purchase, or arrange the purchase of, each B/A from the applicable such Canadian Borrower at the B/A Discount Rate for such Canadian Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable such Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e) 2.06 in respect of each B/A accepted by such Canadian Lender shall be set off against the Discount Proceeds payable by such Canadian Lender under this Section 2.22(e)2.22.
(fg) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(gh) If a Canadian Revolving Lender notifies the Canadian Administrative Agent in writing that it is unable or unwilling to accept Bankers’ Acceptances, such Canadian Lender will, instead of accepting and and, if applicable, purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period make an advance (a “B/A Equivalent NoteLoan”), in ) to the form of Exhibit K, issued by such applicable Canadian Borrower 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, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Canadian Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect Discount Proceeds of such B/A Equivalent Note. The Acceptance Fee payable by Loan for the account of such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each Borrower. Each such B/A Equivalent Note purchased by Loan will bear interest at the same rate that would result if such Lender shall be set off against had accepted (and been paid an Acceptance Fee) and purchased (on a discounted basis at the Discount Proceeds payable by such Lender under this Section 2.22(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before Discount Rate) a Bankers’ Acceptance for the maturity date relevant Contract Period (it being the intention of the parties that each such B/As, A Equivalent Loan shall have the applicable Canadian Borrower shall notify same economic consequences for the Lenders and the Canadian Administrative Agent at Borrowers as the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of Bankers’ Acceptance which such B/As A Equivalent Loan replaces). All such interest shall be paid in advance on the maturity date of such B/As. If such Canadian Borrower fails to make such paymentA Equivalent Loan is made, such maturing B/As shall, subject to satisfaction of and will be deducted from the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face principal amount of such B/A as provided Equivalent Loan in Section 2.07 the same manner in which the Discount Proceeds of a Bankers’ Acceptance would be deducted from the face amount of the Bankers’ Acceptance. Each B/A Equivalent Loan shall be evidenced by a non-interest bearing promissory note of the Canadian Borrower, denominated in Canadian Dollars, executed and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred delivered by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such applicable Canadian Borrower to make such payment.Canadian Lender, substantially in the form of Exhibit J.
(i) Each Canadian Borrower waives presentment for payment and any other defense, defense to payment of any amounts due to a Canadian Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Canadian Lender in its own right and each Canadian Borrower agrees not to claim any days of grace if such Canadian Lender as holder sues such Canadian Borrower on the B/A for payment of the amount payable by such Canadian Borrower thereunder. On the specified maturity date last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through pay the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and after such payment, such 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) If Except as required by any Canadian Lender upon the occurrence of an Event of Default, no B/A Loan may be repaid by a Canadian Revolving Lender grants a participation in a portion Borrower prior to the expiry date of its rights under this Agreement the Contract Period applicable to a participant under Section 9.04(f)such B/A Loan; provided, then in respect of however, that any B/A BorrowingLoan may be defeased as provided in the proviso to Section 2.11(a).
(k) With respect to any repayment of unmatured B/A’s pursuant to the proviso to Section 2.11(a) or otherwise hereunder, a portion thereof may, at the option of such Lender, be by way of Bankers’ Acceptance accepted by such participant. In such event, it is agreed that the applicable Canadian Borrower shall upon request provide for the funding in full of the unmatured B/A’s to be repaid by paying to and depositing with the Canadian Administrative Agent Cash Collateral for each such unmatured B/A equal to the face amount payable at maturity thereof. The Canadian Administrative Agent shall hold such Cash Collateral in an interest bearing Cash Collateral account at rates prevailing at the time of deposit for similar accounts with the Canadian Administrative Agent; such Cash Collateral, such Cash Collateral account, any accounts receivable, claims, instruments or securities evidencing or relating to the foregoing, and any proceeds of any of the foregoing (collectively, the “Outstanding BAs Collateral”) shall be assigned to the Canadian Administrative Agent as security for the obligations of the applicable Canadian Borrower in relation to such B/A’s and the security interest of the Canadian Administrative Agent or created in such Outstanding BAs Collateral shall rank in priority to all other security interests and adverse claims against such Outstanding BAs Collateral. Such Outstanding BAs Collateral shall be applied to satisfy the obligations of the applicable Canadian Borrower for such B/A’s as they mature and the Canadian Revolving Lender granting Administrative Agent is hereby irrevocably directed by the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor of applicable Canadian Borrower to apply any such participant for delivery Outstanding BAs Collateral to such participantmaturing B/A’s. The Outstanding BAs Collateral created herein shall not be released to the applicable Canadian Borrower prior to the maturity of the applicable B/As without the consent of the Canadian Lenders; however, interest on such deposited amounts shall be for the account of the applicable Canadian Borrower and may be withdrawn by the applicable Canadian Borrower so long as no Default or Event of Default is then continuing. If, after maturity of the B/A’s for which such Outstanding BAs Collateral is held and application by the Canadian Administrative Agent of the Outstanding BAs Collateral to satisfy the obligations of the applicable Canadian Borrower hereunder with respect to the B/A’s being repaid, any interest or other proceeds of the Outstanding BAs Collateral remains, such interest or other proceeds shall be promptly paid and transferred by the Canadian Administrative Agent to the applicable Canadian Borrower so long as no Default or Event of Default is then continuing.
Appears in 1 contract
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each the Canadian Borrower may request a Canadian Revolving Borrowing by presenting drafts for acceptance and purchase as B/As by the Canadian Revolving Lenders.
(b) To facilitate No Contract Period with respect to a B/A Borrowingsshall extend beyond the Maturity Date.
(c) To facilitate availment of the Borrowings by way of B/As, each the Canadian Borrower hereby appoints each Canadian Revolving 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 substantially in the form requested by such Lender. of Exhibit H. In this respect, it is each Canadian Revolving Lender’s 's responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each The Canadian Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender shall bind such the Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such the Canadian Borrower. Each 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 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 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 wilful misconduct of such the Canadian Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to B/As (ia) received by it from the Canadian Agent in blank hereunder, (iib) voided by it for any reason, (iiic) accepted and purchased by it hereunder hereunder, and (ivd) canceled cancelled at their respective maturities. Each Canadian Revolving 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 that which apply to such Canadian Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either the Canadian Borrower at the applicable Canadian Borrower’s 's expense upon request. On request by or on behalf of either the Canadian Borrower, a Canadian Revolving Lender shall cancel all forms of B/A that which have been pre-signed or pre-endorsed on behalf of such the Canadian Borrower and that which are held by such the said Canadian Lender and are not required to be issued in accordance with such the Canadian Borrower’s 's irrevocable notice.
(cd) Drafts of a the Canadian Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.222.25. Notwithstanding that any person Person whose signature appears on any B/A may no longer be an authorized signatory for any of the Canadian Revolving Lender Lenders or applicable 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 applicable Canadian Borrower.
(de) Promptly following receipt of a Notice of Canadian Borrowing Request or Notice of Rollover or notice of rollover refinancing pursuant to Section 2.03 2.6 by way of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by a Canadian Revolving Lender shall be a whole multiple of C $C$100,000, and such face amount shall be in the Canadian Revolving Lenders’ Lenders pro rata portions portion of such Canadian Revolving Borrowing; , provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any each Canadian Revolving Lender’s 's portion of such B/A Borrowing to the nearest C $C$100,000.
(ef) Upon acceptance of a B/A by a Canadian Revolving Lender, such Canadian Lender shall purchase, or arrange the purchase of, each B/A from the applicable 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 the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such the Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e) 2.9 in respect of each B/A accepted by such Canadian Lender shall be set off against the Discount Proceeds payable by such Canadian Lender under this Section 2.22(e)2.25.
(fg) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(g) If a Canadian Revolving Lender notifies the Canadian Administrative Agent in writing that it is unable or unwilling to accept Bankers’ Acceptances, such Lender will, instead of accepting and purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period (a “B/A Equivalent Note”), in the form of Exhibit K, issued by such Canadian Borrower in the amount and for the same term as the draft that such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect of such B/A Equivalent Note. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(g).
(h) With respect to each Borrowing which is outstanding hereunder by way of B/A BorrowingAs, at or before 10:00 a.m., Toronto time, 11:00 a.m. two Business Days before the maturity date of such B/As, the applicable Canadian Borrower shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s 's address set forth in Section 9.01 9.1 by irrevocable telephone notice, followed by a notice Notice of rollover Rollover on the same day, if such the Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such the Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on the maturity date of such B/As. If such the Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, shall be deemed to have been converted on their maturity date into a Canadian C$ Prime Rate Loan in an amount equal to the face amount of such B/A as provided in Section 2.07 As and such the Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or and any Canadian Revolving Lender due to the failure of such the Canadian Borrower to make such payment.
(i) Each The Canadian Borrower waives presentment for payment and any other defense, defense to payment of any amounts due to a Canadian Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Canadian Lender in its own right and each the Canadian Borrower agrees not to claim any days of grace if such Canadian Lender as holder sues such the Canadian Borrower on the B/A for payment of the amount payable by such the Canadian Borrower thereunder. On the specified maturity date of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through pay the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and after such payment, such 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) If a Canadian Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant under Section 9.04(f)Participant, then in respect of any B/A BorrowingBorrowing by way of Bankers' Acceptances, a portion thereof may, at the option of such Canadian Lender, be by way of Bankers’ ' Acceptance accepted by such participantParticipant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ ' Acceptance undertaking in favor of such participant Participant for delivery to such participantParticipant.
Appears in 1 contract
Samples: 364 Day Competitive Advance and Revolving Credit Agreement (PHH Corp)
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each the Canadian Borrower may request a Canadian Revolving Borrowing by presenting drafts for acceptance and purchase as of B/As by the Canadian Lenders, in accordance with a request for Canadian Revolving LendersBorrowings under Section 2.03(c).
(b) To facilitate No Contract Period with respect to a B/A Borrowingsshall extend beyond the Maturity Date.
(c) To facilitate availment of the Canadian Revolving Borrowings by way of B/As, each the Canadian Borrower hereby appoints each Canadian Revolving 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 substantially in the form requested by such Lender. of Exhibit D. In this respect, it is each Canadian Revolving Lender’s 's responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each The Canadian Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender shall bind such the Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Canadian Borrower. Each 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 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 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 the Canadian Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i) received by it from the Canadian Administrative Agent in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder hereunder, and (iv) canceled cancelled at their respective maturities. Each Canadian Revolving 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 that which apply to such Canadian Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either the Canadian Borrower at the applicable Canadian Borrower’s 's expense upon request. On request by or on behalf of either the Canadian Borrower, a Canadian Revolving Lender shall cancel all forms of B/A that which have been pre-signed or pre-endorsed on behalf of such the Canadian Borrower and that which are held by such the said Canadian Lender and are not required to be issued in accordance with such the Canadian Borrower’s 's irrevocable notice.
(c) Drafts of a 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 Canadian Revolving Lender or applicable 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 applicable Canadian Borrower.
(d) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 by way of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by a Canadian Revolving Lender shall be a whole multiple of C $100,000, and such face amount shall be in the Canadian Revolving Lenders’ pro rata portions of such Canadian Revolving Borrowing; provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $100,000.
(e) Upon acceptance of a B/A by a Canadian Revolving Lender, such Lender shall purchase, or arrange the purchase of, each B/A from the applicable Canadian Borrower at the Discount Rate for such Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e) in respect of each B/A accepted by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(e).
(f) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(g) If a Canadian Revolving Lender notifies the Canadian Administrative Agent in writing that it is unable or unwilling to accept Bankers’ Acceptances, such Lender will, instead of accepting and purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period (a “B/A Equivalent Note”), in the form of Exhibit K, issued by such Canadian Borrower in the amount and for the same term as the draft that such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect of such B/A Equivalent Note. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before the maturity date of such B/As, the applicable Canadian Borrower shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on the maturity date of such B/As. If such Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face amount of such B/A as provided in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such Canadian Borrower to make such payment.
(i) Each Canadian Borrower waives presentment for payment and any other defense, in respect of a B/A accepted and purchased by it pursuant to this Agreement, that might exist solely by reason of such B/A being held, at the maturity thereof, by such Lender in its own right and each Canadian Borrower agrees not to claim any days of grace if such Lender as holder sues such Canadian Borrower on the B/A for payment of the amount payable by such Canadian Borrower thereunder. On the specified maturity date of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and after such payment, such 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.
(j) If a Canadian Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant under Section 9.04(f), then in respect of any B/A Borrowing, a portion thereof may, at the option of such Lender, be by way of Bankers’ Acceptance accepted by such participant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor of such participant for delivery to such participant.
Appears in 1 contract
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each the Canadian Borrower and the Parent Borrower (for purposes of this Section 2.21 only, such Borrowers shall collectively be referred to as the "Borrower") may request a Canadian C $ Revolving Credit Borrowing by presenting drafts for acceptance and purchase as B/As by the Canadian C $ Revolving Credit Lenders.
(b) To facilitate availment of B/A Borrowings, each Canadian the Borrower hereby appoints each Canadian C $ Revolving Credit 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 Lender, blank forms of B/As in the form requested by such Lender. In this respect, it is each Canadian C $ Revolving Credit Lender’s 's responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Canadian The Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian C $ Revolving Credit Lender shall bind such Canadian the Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Canadian the Borrower. Each Canadian C $ Revolving Credit Lender is hereby authorized 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 B/As required to be accepted and purchased by such Lender. No Canadian C $ 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 the gross negligence or willful wilful misconduct of such Lender or its officers, employees, agents or representatives. Each Canadian C $ Revolving Credit Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder and (iv) canceled at their respective maturities. Each Canadian C $ Revolving Credit 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 that which apply to such Lender. Each Canadian C $ Revolving Credit Lender agrees to provide a copy of such records to either Canadian the Borrower at the applicable Canadian Borrower’s 's expense upon request. On request by or on behalf of either Canadian the Borrower, a Canadian C $ Revolving Credit Lender shall cancel all forms of B/A that which have been pre-signed or pre-endorsed on behalf of such Canadian the Borrower and that which are held by such Lender and are not required to be issued in accordance with such Canadian the Borrower’s 's irrevocable notice.
(c) Drafts of a 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 Canadian Revolving Lender or applicable 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 applicable Canadian Borrower.
(d) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 by way of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by a Canadian Revolving Lender shall be a whole multiple of C $100,000, and such face amount shall be in the Canadian Revolving Lenders’ pro rata portions of such Canadian Revolving Borrowing; provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $100,000.
(e) Upon acceptance of a B/A by a Canadian Revolving Lender, such Lender shall purchase, or arrange the purchase of, each B/A from the applicable Canadian Borrower at the Discount Rate for such Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e) in respect of each B/A accepted by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(e).
(f) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(g) If a Canadian Revolving Lender notifies the Canadian Administrative Agent in writing that it is unable or unwilling to accept Bankers’ Acceptances, such Lender will, instead of accepting and purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period (a “B/A Equivalent Note”), in the form of Exhibit K, issued by such Canadian Borrower in the amount and for the same term as the draft that such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect of such B/A Equivalent Note. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before the maturity date of such B/As, the applicable Canadian Borrower shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on the maturity date of such B/As. If such Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face amount of such B/A as provided in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such Canadian Borrower to make such payment.
(i) Each Canadian Borrower waives presentment for payment and any other defense, in respect of a B/A accepted and purchased by it pursuant to this Agreement, that might exist solely by reason of such B/A being held, at the maturity thereof, by such Lender in its own right and each Canadian Borrower agrees not to claim any days of grace if such Lender as holder sues such Canadian Borrower on the B/A for payment of the amount payable by such Canadian Borrower thereunder. On the specified maturity date of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and after such payment, such 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.
(j) If a Canadian Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant under Section 9.04(f), then in respect of any B/A Borrowing, a portion thereof may, at the option of such Lender, be by way of Bankers’ Acceptance accepted by such participant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor of such participant for delivery to such participant.
Appears in 1 contract
Samples: Credit Agreement (Imperial Home Decor Group Holdings I LTD)
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each the Canadian Borrower Borrowers may request a Borrowings of Canadian Revolving Borrowing Credit Loans by presenting drafts for acceptance and purchase as B/As by the Canadian Revolving Lenders.
(b) To facilitate availment of B/A Borrowings, the Canadian Borrowers hereby appoint each Canadian Borrower hereby appoints each Canadian Revolving Lender as its their attorney to sign and endorse on its their 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. In this respect, it is each Canadian Revolving Lender’s 's responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each The Canadian Borrower recognizes Borrowers recognize and agrees agree that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender shall jointly and severally bind such the Canadian Borrower Borrowers as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such each Canadian Borrower. Each 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 Lender; provided , 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 Revolving Lender or any Affiliate thereof 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 or its Affiliate, as applicable, or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i1) received by it in blank hereunder, (ii2) voided by it for any reason, (iii3) accepted and purchased by it hereunder and (iv4) canceled at their respective maturities. Each Canadian Revolving 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 that which apply to such Canadian Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either the Canadian Borrower Borrowers at the applicable Canadian Borrower’s Borrowers' expense upon request. On request by or on behalf of either the Canadian BorrowerBorrowers, a Canadian Revolving Lender shall cancel all forms of B/A that As which have been pre-signed or pre-endorsed on behalf of such the Canadian Borrower Borrowers and that which are held by such Canadian Lender and are not required to be issued in accordance with such the Canadian Borrower’s Borrowers' irrevocable notice. The Canadian Borrowers agree that, at the request of the Canadian Administrative Agent, they shall deliver to the 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 clearance system maintained by the Canadian Depository for Securities.
(c) Drafts of a the Canadian Borrower Borrowers to be accepted as B/As hereunder shall be signed as set forth in this Section 2.222.6. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian Revolving Lender or applicable the Canadian Borrower Borrowers 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 applicable Canadian BorrowerBorrowers.
(d) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to this Section 2.03 2.6 or Section 2.10 by way of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The aggregate face amount of the B/As to be accepted by a the Canadian Revolving Lender Lenders in respect of any Borrowing or rollover of B/A Loans shall be a whole multiple of C $100,000, not less than C$500,000 and such face amount shall be in the Canadian Revolving Lenders’ pro rata portions an integral multiple of such Canadian Revolving Borrowing; provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Revolving Lender’s portion of such B/A Borrowing to the nearest C $C$100,000.
(e) Upon acceptance of a B/A by a Canadian Revolving Lender, such Canadian Lender shall purchase, or arrange the purchase of, each such B/A from the applicable Canadian Borrower Borrowers at the Discount Rate for such Canadian Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A Borrowers in which event an Acceptance Fee shall be payable by the Canadian Borrowers to such Canadian Lender in respect of such B/A. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(e) in respect of each B/A accepted by such Lender and shall be set off against the Discount Proceeds payable by such Canadian Lender under this Section 2.22(e2.6(e).
(f) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(g) If a Canadian Revolving Lender is not a chartered bank under the Bank Act (Canada) or if a Canadian Lender notifies the Canadian Administrative Agent in writing that it is otherwise unable or unwilling to accept Bankers’ AcceptancesB/As, such Canadian Lender will, instead of accepting and purchasing Bankers’ AcceptancesB/As, purchase from the applicable Canadian Borrower Borrowers a non-interest bearing note that does not bear interest during the Contract Period denominated in C$ (a “"B/A Equivalent Note”EQUIVALENT NOTE"), in the form of Exhibit K, issued by such the Canadian Borrower Borrowers in the amount and for the same term as the draft that which such Canadian Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Canadian Lender will provide to the Canadian Administrative Agent the proceeds Discount Proceeds of such purchase B/A Equivalent Note for the account of the applicable any Canadian Borrower. The applicable Each such B/A Equivalent Note will bear interest at the same rate which would result if such Canadian 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 B/A Equivalent Note shall have the same economic consequences for the Canadian Lenders and any Canadian Borrower willas the B/A which such B/A Equivalent Note replaces). All such interest shall be paid in advance on the date such B/A Loan is made, upon purchase and will be deducted from the principal amount of such B/A Equivalent Note in the same manner in which the Discount Proceeds of a B/A would be deducted from the face amount of the B/A. Subject to repayment requirements, on the last day of the relevant Contract Period for such B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such any Canadian Borrower the shall be entitled to convert each such B/A Equivalent Note an Acceptance Fee in respect into another type of Loan, or to roll over each such B/A Equivalent Note. The Acceptance Fee payable by such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each Note into another B/A Equivalent Note purchased by such Lender shall be set off against Note, all in accordance with the Discount Proceeds payable by such Lender under applicable provisions of this Section 2.22(g)Agreement.
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before the maturity date of such B/As, the applicable The Canadian Borrower shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on the maturity date of such B/As. If such Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face amount of such B/A as provided in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such Canadian Borrower to make such payment.
(i) Each Canadian Borrower waives Borrowers waive presentment for payment and any other defense, defense to payment of any amounts due to a Canadian Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Canadian Lender in its own right and each the Canadian Borrower agrees Borrowers agree not to claim any days of grace if such Canadian Lender as holder sues such the Canadian Borrower Borrowers on the B/A for payment of the amount payable by such the Canadian Borrower Borrowers thereunder. On the specified maturity date of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower Borrowers shall jointly and severally pay, through the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and after such payment, such the Canadian Borrower Borrowers 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.
(ji) If a Canadian Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant under Section 9.04(f)10.7, then in respect of any B/A Borrowing, a portion thereof may, at the option of such Canadian Lender, be by way of Bankers’ Acceptance B/A accepted by such participant. In such event, the applicable Canadian Borrower Borrowers shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking B/A indemnity in favor of such participant for delivery to such participant.
(j) Notwithstanding anything herein to the contrary, no B/A may be prepaid prior to the maturity date thereof, except as provided in Article 8.
Appears in 1 contract
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each Canadian Borrower may request a Canadian Revolving Borrowing by presenting drafts for acceptance and purchase and, if applicable, purchase, as B/As by the Canadian Revolving Lenders.
(b) To facilitate No Contract Period with respect to a B/A Borrowingsto be accepted and, if applicable, purchased, as a Revolving Advance shall extend beyond the Revolving Commitment Termination Date and no Contract Period with respect to a B/A to be accepted and, if applicable, purchased, as a Term Advance shall extend beyond the Final Maturity Date.
(c) To facilitate availment of B/A Advances, each Canadian Borrower hereby appoints each Canadian Revolving Lender as its attorney to sign and endorse on its behalfbehalf (in accordance with a Notice of Borrowing or Notice of Continuation relating to a B/A Advance), in handwriting or by facsimile or mechanical signature as and when deemed necessary by such Lender, blank forms of B/As in the form requested by such Lender. In this respect, it is each Canadian Revolving Lender’s 's responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Canadian Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender on behalf of such Borrower shall bind such Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Canadian Borrower. Each Canadian Revolving Lender is hereby authorized (in accordance with a Notice of Borrowing or Notice of Continuation relating to a B/A Advance) 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 B/As required to be accepted and purchased by such 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 wilful misconduct of such the Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder hereunder, and (iv) canceled at their respective maturities. Each Canadian Revolving 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 that apply to such Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either Canadian Borrower, a Canadian Revolving Lender shall cancel all forms of B/A that As which have been pre-signed or pre-endorsed on behalf of such Canadian Borrower and that are held by such Lender and are not required to be issued in accordance with such Canadian Borrower’s 's irrevocable notice. Alternatively, each Borrower agrees that, at the request of the Administrative Agent, such Borrower shall deliver to the Administrative Agent a "depository note" which complies with the requirements of the Depository Bills and Notes Act (Canada), and consents to the deposit of any such depository note in the book-based debt clearance system maintained by the Canadian Depository for Securities.
(cd) Drafts of a Canadian Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.222.11. Notwithstanding that any person Person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian Revolving Lender or applicable Canadian a Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on the applicable Canadian Borrower.
(de) Promptly following the receipt of a Notice of Borrowing Request or notice Notice of rollover pursuant to Section 2.03 Continuation specifying a Borrowing or Continuation of a Borrowing by way of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The In the case of Advances comprised of B/A Advances, 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.$100,000 and shall be a whole multiple of C $100,000Cdn.$100,000, and such face amount shall be in the Canadian Revolving Lenders’ ' pro rata portions of such Canadian Revolving Borrowing; , provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Revolving Lender’s 's portion of such B/A Borrowing Advance to the nearest C $100,000Cdn.$100,000 without reducing the overall Commitments.
(ef) Upon Each Borrower may specify in a Notice of Borrowing or Notice of Continuation that it desires that any B/As requested by such Notice of Borrowing or Notice of Continuation be purchased by the Lenders, in which case the Lenders shall, upon acceptance of a B/A by a Canadian Revolving Lender, such Lender shall purchase, or arrange for the purchase of, each B/A from the applicable Canadian such Borrower at the Discount Rate for such Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian such Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such Canadian each Borrower to a Canadian Revolving Lender under this Section 2.22(e2.06(iv) in respect of each B/A accepted by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(e)2.11.
(fg) Where a Borrower so specifies in its Notice of Borrowing or Notice of Continuation, it shall make its own arrangements for the marketing of B/As, in which case, by subsequent notice to the Administrative Agent, it shall provide the Administrative Agent, who shall in turn notify each Lender, with information as to the discount proceeds payable by the purchasers of the B/As and the party to whom delivery of the B/As by each Lender is to be made against delivery to each Lender of the applicable discount proceeds, but if it does not do so, such Borrower shall initiate a telephone call to the Administrative Agent by 9:00 a.m. (Calgary local time) on the date of advance, and provide such information to the Administrative Agent. Any such telephonic advice shall be confirmed by a written notice by the applicable Borrower to the Administrative Agent prior to 2:00 p.m. (Calgary local time) on the same day.
(h) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(gi) If a Canadian Revolving Lender is not a bank listed on Schedule I, II or III of the Bank Act (Canada) or if a Lender notifies the Canadian Administrative Agent in writing that it is otherwise unable or unwilling to accept Bankers’ Acceptancesbankers' acceptances, such Lender willshall give notice to such effect to the Administrative Agent prior to 10:00 a.m., instead (Calgary local time), on the date of accepting the requested credit extension (which notice may, if so stated therein, remain in effect with respect to subsequent requests for extension of credit by way of Bankers' Acceptance until revoked by notice to the Administrative Agent) and purchasing shall make available to the Administrative Agent, in accordance with Section 2.01 hereof prior to 11:00 a.m. (Calgary local time), on the date of such requested credit extension, a Canadian Dollar Eurodollar Rate Advance (a "BA LOAN") in the principal amount equal to such Lender's Commitment Percentage of the total amount of credit requested to be extended by way of Bankers’ ' Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during . Such BA Loan shall have an Interest Period equal to the Contract Period (of the Bankers' Acceptances for which it is a “B/A Equivalent Note”), in substitute and shall bear interest throughout the form of Exhibit K, issued by Interest Period applicable to such Canadian Borrower in the amount and for the same term as the draft that such Lender would otherwise have been required to accept and purchase hereunder, BA Loan at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Lender will provide rate per annum equal to the Canadian Administrative Agent Dollar Eurodollar Rate plus the proceeds of such purchase for Eurodollar Rate Margin. Subject to repayment requirements, on the account last day of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect of relevant Interest Period for such B/A Equivalent Note. The Acceptance Fee payable by Loan, the applicable Borrower shall be entitled to Continue each such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by Loan as another Type of Advance, or to roll over each such Lender shall be set off against B/A Loan into another B/A Loan, all in accordance with the Discount Proceeds payable by such Lender under applicable provisions of this Section 2.22(g)Agreement.
(hj) With respect to each B/A BorrowingAdvance, at or before 10:00 a.m., Toronto 9:00 a.m. (Calgary local time, ) two Business Days before the maturity date last day of the Contract Period of such B/As, the applicable Canadian Borrower shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover in substantially the form set forth in Exhibit B hereto on the same day, if such Canadian Borrower intends to issue B/As on such maturity date last day of the Contract Period to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity datelast day of the Contract Period, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on the maturity date last day of the Contract Period of such B/As. If such Canadian the applicable Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, shall be deemed to have been converted Continued on their maturity date into the last day of such Contract Period as a Canadian Prime Rate Loan Advance in an amount equal to the face amount of such B/A as provided in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such Canadian Borrower to make such paymentAs.
(ik) Each Canadian Borrower waives presentment for payment and any other defense, defense to payment of any amounts due to a Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Lender in its own right right, and each Canadian Borrower agrees not to claim any days of grace if such Lender Lender, as holder holder, sues such Canadian Borrower on the B/A for payment of the amount payable by such Canadian the applicable Borrower thereunder. On the specified maturity date last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through pay the Canadian Administrative Agent, the Canadian Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and and, after such payment, such Canadian the applicable 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.
(jl) If a Canadian Revolving Except as required by any Lender grants a participation in a portion upon the occurrence of its rights under this Agreement to a participant under Section 9.04(f)an Event of Default, then in respect of any no B/A Borrowing, Advance may be repaid by a portion thereof may, at Borrower prior to the option of such Lender, be by way of Bankers’ Acceptance accepted by such participant. In such event, the applicable Canadian Borrower shall upon request expiry date of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor of such participant for delivery Contract Period applicable to such participantB/A Advance.
Appears in 1 contract
Samples: Canadian Credit Agreement (Burlington Resources Inc)
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each Canadian Borrower of the Borrowers may request a Canadian Revolving Borrowing by presenting drafts for acceptance and purchase as B/As by the Canadian Revolving Lenders.
(b) No Contract Period with respect to a B/A to be accepted and purchased under the Revolving Credit shall extend beyond the Maturity Date.
(c) To facilitate availment of B/A Borrowings, each Canadian Borrower of the Borrowers hereby appoints each Canadian Revolving Lender as its attorney to sign and endorse on its behalfbehalf (in accordance with a Borrowing Request relating to a B/A Borrowing), in handwriting or by facsimile or mechanical signature as and when deemed necessary by such Lender, blank forms of B/As in the form requested by such Lender. In this respect, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each Canadian Borrower recognizes of the Borrowers recognize and agrees agree that all B/As signed and/or endorsed on its behalf by a Canadian Revolving Lender on behalf of the Borrowers shall bind such Canadian Borrower the Borrowers as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such Canadian Borrowerthe Borrowers. Each Canadian Revolving Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Borrowing) to issue such B/As endorsed in blank in such face amounts as may be determined by such Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by such 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 wilful misconduct of such the Lender or its officers, employees, agents or representatives. Each Canadian Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder hereunder, and (iv) canceled cancelled at their respective maturities. Each Canadian Revolving 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 that apply to such Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either Canadian Borrower, a Canadian Revolving Lender shall cancel all forms of B/A that which have been pre-signed or pre-endorsed on behalf of such Canadian Borrower and that which are held by such Lender and are not required to be issued in accordance with any Borrowing Request made by such Borrower in respect of a B/A Borrowing. Alternatively, each of the Borrowers agree that, at the request of the Administrative Agent, the Borrowers shall deliver to the Administrative Agent a “depository note” which complies with the requirements of the Depository Bills and Notes Act (Canada), and consents to the deposit of any such depository note in the book-based debt clearance system maintained by the Canadian Borrower’s irrevocable noticeDepository for Securities.
(cd) Drafts of a Canadian Borrower the Borrowers to be accepted as B/As hereunder shall be signed as set forth out in this Section 2.222.11. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian Revolving Lender or applicable Canadian Borrower the Borrowers 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 applicable Canadian BorrowerBorrowers.
(de) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 specifying a Borrowing by way of B/As, the Canadian Administrative Agent shall so advise the Canadian Revolving Lenders and shall advise each Canadian Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Revolving Lenders). The In the case of B/A Borrowings under the Revolving Credit, the aggregate face amount of the B/As to be accepted by the Lenders shall be in a Canadian Revolving Lender minimum aggregate amount of Cdn.$5,000,000 and shall be a whole multiple of C $100,000Cdn.$100,000, and such face amount shall be in the Canadian Revolving Credit Lenders’ pro rata portions of such Canadian Revolving the Borrowing; , provided that the Canadian Administrative Agent may may, in its sole discretion discretion, increase or reduce any Canadian Revolving Credit Lender’s portion of such B/A Borrowing to the nearest C $100,000Cdn.$1,000 provided that no Revolving Lender’s Revolving Credit Commitment shall be thereby exceeded.
(ef) Upon acceptance of a B/A by a Canadian Revolving Lender, such Lender shall purchase, or arrange for the purchase of, each B/A from the applicable Canadian Borrower Borrowers at the Discount Rate for such Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian BorrowerBorrowers. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such Canadian Borrower the Borrowers to a Canadian Revolving Lender under this Section 2.22(e) 2.5 in respect of each B/A accepted by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(e)2.11.
(fg) Each Canadian Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(gh) If a Canadian Revolving Lender is not a chartered bank or Schedule III bank under the Bank Act (Canada) or if a Lender notifies the Canadian Administrative Agent in writing that it is otherwise unable or unwilling to accept Bankers’ Acceptances, such Lender will, instead of accepting and purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower make a note that does not bear interest during the Contract Period Loan (a “B/A Equivalent NoteLoan”), in ) to the form of Exhibit K, issued by such Canadian Borrower Borrowers in the amount and for the same term as the draft that which such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect Discount Proceeds of such B/A Equivalent NoteLoan for the account of the relevant Borrower. The Acceptance Fee payable by Each such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note purchased by Loan will bear interest at the same rate which would result if such Lender had accepted (and been paid an Acceptance Fee) and purchased (on a discounted basis) 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 Borrowers as the Bankers’ Acceptance which such B/A Equivalent Loan replaces). All such interest shall be set off against paid in advance on the Discount Proceeds payable by date such Lender under B/A Loan is made, and will be deducted from the principal amount of such B/A Equivalent Loan. Subject to repayment requirements, on the last day of the relevant Contract Period for such B/A Equivalent Loan, the relevant Borrower shall be entitled to convert each such B/A Equivalent Loan into another type of Loan, or to roll over each such B/A Equivalent Loan into another B/A Equivalent Loan, all in accordance with the applicable provisions of this Section 2.22(g)Agreement.
(hi) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, 11:00 a.m. two Business Days before the maturity date last day of the Contract Period of such B/AsA Borrowing, the applicable Canadian relevant Borrower shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such Canadian Borrower intends to issue B/As on such maturity date last day of the Contract Period to provide for the payment of such maturing B/AsA Borrowing. If the applicable Canadian such Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity datelast day of the Contract Period, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As A Borrowing on the maturity date last day of such B/Asthe Contract Period of thereof. If such Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, shall be deemed to have been converted on their maturity date the last day of the Contract Period into a Canadian Prime Rate Loan in an amount equal to the face amount of such B/A as provided in Section 2.07 and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to the failure of such Canadian Borrower to make such paymentAs.
(ij) Each Canadian Borrower waives The Borrowers waive presentment for payment and any other defense, defence to payment of any amounts due to a Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Lender in its own right right, and each Canadian Borrower agrees the Borrowers agree not to claim any days of grace if such Lender Lender, as holder holder, sues such Canadian the relevant Borrower on the B/A for payment of the amount payable by such Canadian Borrower thereunder. On the specified maturity date last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian relevant Borrower shall pay, through pay the Canadian Administrative Agent, Agent for the Canadian Revolving Lender account of the Lenders that has have accepted and purchased such B/A the full face amount of such B/A and and, after such payment, such Canadian Borrower shall have no further liability in respect of such B/A and such Lender Lenders shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A.
(jk) If a Canadian Revolving Except as required by any Lender grants a participation in a portion upon the occurrence of its rights under this Agreement an Event of Default, no B/A Borrowing may be repaid by the Borrowers prior to a participant under Section 9.04(f)the expiry date of the Contract Period applicable to such B/A Borrowing; provided, then in respect of however, that the Borrowers may defease any B/A Borrowing, a portion thereof may, at Borrowing by depositing with the option Administrative Agent an amount that is sufficient to repay the full face amount of such Lender, be by way of Bankers’ Acceptance accepted by such participant. In such event, B/A Borrowing on the applicable Canadian Borrower shall upon request expiry date of the Canadian Contract Period applicable to such B/A Borrowing.
(l) If any Event of Default shall occur and be continuing, on the Business Day that the Borrowers receive written notice from the Administrative Agent or the Canadian Required Lenders (or, if the maturity of the Loans has been accelerated, Lenders with B/A Exposure representing greater than 50% of the total applicable B/A Exposure) demanding the deposit of cash collateral pursuant to this Section 2.11(l), the Borrowers shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Revolving Lender granting Credit Lenders, an amount in cash equal to the participation execute and deliver a form of Bankers’ Acceptance undertaking in favor applicable B/A Exposure as of such participant date; provided that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default described in Section 7.1 (h), (i) or (j). Such deposit shall be held by the Administrative Agent as collateral for delivery the payment and performance of the obligations of the Borrowers under this Agreement. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Any such deposit shall bear interest for the account of such Borrower at the rate customarily paid by the Administrative Agent for deposits of similar currency, amount and tenor, which interest shall be credited to such participantaccount. Moneys in such account shall be held for the satisfaction of the reimbursement obligations of the Borrowers for the B/A Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of Revolving Credit Lenders with B/A Exposure representing greater than 50% of the total applicable B/A Exposure), be applied to satisfy other obligations of the Borrowers under this Agreement. If the Borrowers are required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, and all Events of Default shall have been subsequently cured or waived, such amount together with all interest earned thereon (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or waived.
Appears in 1 contract
Samples: Senior Revolving Facility Credit Agreement (Tim Hortons Inc.)
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each the Canadian Borrower may request a Multicurrency Revolving Credit Borrowing denominated in Canadian Revolving Borrowing Dollars by presenting drafts for acceptance and purchase as B/As by the Canadian Multicurrency Revolving Credit Lenders.
(b) To facilitate No Contract Period with respect to a B/A Borrowingsto be accepted and, each if applicable, purchased as a Multicurrency Revolving Loan shall extend beyond the Revolving Credit Maturity Date. All B/As and B/A Loans shall be denominated in Canadian Dollars.
(c) To facilitate availment of B/A Loans, the Canadian Borrower hereby appoints each Canadian Multicurrency Revolving Credit Lender as its attorney to sign and endorse on its behalfbehalf (in accordance with a Borrowing Request relating to a B/A Loan pursuant to Section 2.03 or 2.10), in handwriting or by facsimile or mechanical signature as and when deemed necessary by such Multicurrency Revolving Credit Lender, blank forms of B/As in the form requested by such Multicurrency Revolving Credit Lender. In this respect, it is each Canadian Revolving Lender’s responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each The Canadian Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Multicurrency Revolving Credit Lender on behalf of the Canadian Revolving Lender Borrower shall bind such the Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such the Canadian Borrower. Each Canadian Multicurrency Revolving Credit Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Loan) to issue such B/As endorsed in blank in such face amounts as may be determined by such Multicurrency Revolving Credit Lender; provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by such Multicurrency Revolving Credit Lender. No Canadian Multicurrency 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 for the gross negligence or willful wilful misconduct of such Multicurrency Revolving Credit Lender or its officers, employees, agents or representatives. Each Canadian Multicurrency Revolving Credit Lender shall maintain a record record, which shall be made available to the Canadian Borrower upon its request, with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder and (iv) canceled at their respective maturities. Each Canadian Revolving 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 that apply to such Lender. Each Canadian Revolving Lender agrees to provide a copy of such records to either Canadian Borrower at the applicable Canadian Borrower’s expense upon request. On request by or on behalf of either the Canadian Borrower, a Canadian Multicurrency Revolving Credit Lender shall cancel all forms of B/A that As which have been pre-signed or pre-endorsed on behalf of such the Canadian Borrower and that are held by such Multicurrency Revolving Credit Lender and are not required to be issued in accordance with such the Canadian Borrower’s irrevocable notice. Alternatively, the Canadian Borrower agrees that, at the request of the Administrative Agent, the Canadian Borrower shall deliver to the Administrative Agent a “depository note” which complies with the requirements of the Depository Bills and Notes Act (Canada), and consents to the deposit of any such depository note in the book-based debt clearance system maintained by the Canadian Depository for Securities.
(cd) Drafts of a the Canadian Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.222.24. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian Multicurrency Revolving Credit Lender or applicable 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 applicable Canadian Borrower.
(de) Promptly following the receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 specifying a Multicurrency Revolving Credit Borrowing by way of B/AsA, the Canadian Administrative Agent shall so advise the Canadian Multicurrency Revolving Credit Lenders and shall advise each Canadian Multicurrency Revolving Credit Lender of the aggregate face amount of the B/As A to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian Multicurrency Revolving Credit Lenders). The In the case of Multicurrency Revolving Loans comprised of B/A Loans, the aggregate face amount of the B/As A to be accepted by a Canadian Multicurrency Revolving Credit Lender shall be in a minimum aggregate amount of C$100,000 and shall be a whole multiple of C $C$100,000, and such face amount shall be in the Canadian Multicurrency Revolving Credit Lenders’ pro rata portions of such Canadian Multicurrency Revolving Credit Borrowing; , provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian Multicurrency Revolving Credit Lender’s portion of such B/A Borrowing Loan to the nearest C $100,000C$100,000 without reducing the aggregate Multicurrency Revolving Credit Commitments.
(ef) Upon The Canadian Borrower may specify in a Borrowing Request pursuant to Section 2.03 or 2.10 that it desires that any B/A requested by such Borrowing Request be purchased by the Multicurrency Revolving Credit Lenders, in which case the Multicurrency Revolving Credit Lenders shall, upon acceptance of a B/A by a Canadian Multicurrency Revolving Credit Lender, such Lender shall purchase, or arrange the purchase of, each B/A from the applicable Canadian Borrower at the Discount Rate for such Multicurrency Revolving Credit Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such the Canadian Borrower to a Canadian Multicurrency Revolving Credit Lender under this Section 2.22(e2.06(d) in respect of each B/A accepted by such Multicurrency Revolving Credit Lender shall be set off against and deducted from the Discount Proceeds payable by such Multicurrency Revolving Credit Lender under this Section 2.22(e)2.24.
(fg) Each Canadian Multicurrency Revolving Credit Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(gh) If a Canadian Multicurrency Revolving Credit Lender is not a chartered bank under the Bank Act (Canada) or if a Multicurrency Revolving Credit Lender notifies the Canadian Administrative Agent in writing that it is otherwise unable or unwilling to accept Bankers’ Acceptances, such Multicurrency Revolving Credit Lender will, instead of accepting and purchasing Bankers’ Acceptances, purchase from the applicable Canadian Borrower a note that does not bear interest during the Contract Period make an advance (a “B/A Equivalent NoteLoan”), in ) to the form of Exhibit K, issued by such Canadian Borrower in the amount and for the same term as the draft that such Multicurrency Revolving Credit Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ Acceptances are discounted pursuant to this Agreement. Each such Multicurrency Revolving Credit Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that purchased from such Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect Discount Proceeds of such B/A Equivalent NoteLoan for the account of the Canadian Borrower. The Acceptance Fee payable by Each such Canadian Borrower to a Canadian Revolving Lender under this Section 2.22(g) in respect of each B/A Equivalent Note Loan will bear interest at the same rate that would result if such Multicurrency Revolving Credit Lender had accepted (and been paid an Acceptance Fee) and purchased by such Lender shall be set off against (on a discounted basis at the Discount Proceeds payable by Rate) a Bankers’ Acceptance for the relevant Contract Period (it being the intention of the parties that each such Lender under this Section 2.22(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two Business Days before Equivalent Loan shall have the maturity date of same economic consequences for the Multicurrency Revolving Credit Lenders and the Canadian Borrower as the Bankers’ Acceptance which such B/As, the applicable Canadian Borrower A Equivalent Loan replaces). All such interest shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s address set forth be paid in Section 9.01 by irrevocable telephone notice, followed by a notice of rollover advance on the same day, if such Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian Revolving Lenders of an amount equal to the aggregate face amount of such B/As on A Equivalent Loan is made, and will be deducted from the maturity date of such B/As. If such Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face principal amount of such B/A as provided Equivalent Loan in Section 2.07 the same manner in which the deduction based on the Discount Rate and such Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian Revolving Lender due to applicable Acceptance Fee of a Bankers’ Acceptance would be deducted from the failure face amount of such Canadian Borrower to make such paymentthe Bankers’ Acceptance.
(i) Each The Canadian Borrower waives presentment for payment and any other defense, defense to payment of any amounts due to a Multicurrency Revolving Credit Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement, that Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Multicurrency Revolving Credit Lender in its own right right, and each the Canadian Borrower agrees not to claim any days of grace if such Lender Multicurrency Revolving Credit Lender, as holder holder, claims payment from or sues such the Canadian Borrower on the B/A for payment of the amount payable by such the Canadian Borrower thereunder. On the specified maturity date last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through pay the Canadian Administrative Agent, the Canadian Multicurrency Revolving Credit Lender that has accepted and purchased such a B/A or advanced a B/A Equivalent Loan the full face amount of such B/A and or B/A Equivalent Loan, as the case may be, and, after such payment, such the Canadian Borrower shall have no further liability in respect of such B/A and such Multicurrency Revolving Credit Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A.
(j) If a Except as required by any Multicurrency Revolving Credit Lender upon the occurrence of an Event of Default, no B/A Loan may be repaid by the Canadian Revolving Lender grants a participation in a portion Borrower prior to the expiry date of its rights under this Agreement the Contract Period applicable to a participant under Section 9.04(f)such B/A Loan; provided, then in respect of however, that any B/A Borrowing, a portion thereof may, at the option of such Lender, Loan may be by way of Bankers’ Acceptance accepted by such participant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian Revolving Lender granting the participation execute and deliver a form of Bankers’ Acceptance undertaking defeased as provided in favor of such participant for delivery to such participantSection 2.12(a).
Appears in 1 contract
Samples: Credit Agreement (Cbre Group, Inc.)
Bankers’ Acceptances. (a) Subject to the terms and conditions of this Agreement, each the Canadian Borrower may request a Canadian C $ Revolving Borrowing by presenting drafts for acceptance and purchase as B/As by the Canadian C $ Revolving Lenders.
(b) To facilitate B/A Borrowings, each the Canadian Borrower hereby appoints each Canadian C $ Revolving 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 Lender, blank forms of B/As in the form requested by such Lender. In this respect, it is each Canadian C $ Revolving Lender’s 's responsibility to maintain an adequate supply of blank forms of B/As for acceptance under this Agreement. Each The Canadian Borrower recognizes and agrees that all B/As signed and/or endorsed on its behalf by a Canadian C $ Revolving Lender shall bind such the Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of such the Canadian Borrower. Each Canadian C $ Revolving Lender is hereby authorized 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 B/As required to be accepted and purchased by such Lender. No Canadian C $ 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 wilful misconduct of such Lender or its officers, employees, agents or representatives. Each Canadian C $ Revolving Lender shall maintain a record with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased by it hereunder and (iv) canceled at their respective maturities. Each Canadian C $ Revolving 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 that apply to such Lender. Each Canadian C $ Revolving Lender agrees to provide a copy of such records to either the Canadian Borrower at the applicable Canadian Borrower’s 's expense upon request. On request by or on behalf of either the Canadian Borrower, a Canadian C $ Revolving Lender shall cancel all forms of B/A that have been pre-signed or pre-endorsed on behalf of such the Canadian Borrower and that are held by such Lender and are not required to be issued in accordance with such the Canadian Borrower’s 's irrevocable notice.
(c) Drafts of a the Canadian Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.222.20. Notwithstanding that any person whose signature appears on any B/A may no longer be an authorized signatory for any Canadian C $ Revolving Lender or applicable 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 applicable Canadian Borrower.
(d) Promptly following receipt of a Borrowing Request or notice of rollover pursuant to Section 2.03 by way of B/As, the Canadian Administrative Agent shall so advise the Canadian C $ Revolving Lenders and shall advise each Canadian C $ Revolving Lender of the aggregate face amount of the B/As to be accepted by it and the applicable Contract Period (which shall be identical for all Canadian C $ Revolving Lenders). The aggregate face amount of the B/As to be accepted by a Canadian C $ Revolving Lender shall be a whole multiple of C $100,000, and such face amount shall be in the Canadian C $ Revolving Lenders’ ' pro rata portions of such Canadian C $ Revolving Borrowing; , provided that the Canadian Administrative Agent may in its sole discretion increase or reduce any Canadian C $ Revolving Lender’s 's portion of such B/A Borrowing to the nearest C $100,000.
(e) Upon acceptance of a B/A by a Canadian C $ Revolving Lender, such Lender shall purchase, or arrange the purchase of, each B/A from the applicable Canadian Borrower at the Discount Rate for such Lender applicable to such B/A accepted by it and provide to the Canadian Administrative Agent the Discount Proceeds for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon acceptance of a B/A by a Canadian Revolving Lender, be obligated to pay to the Canadian Administrative Agent on behalf of the Canadian Revolving Lender that accepted the B/A an Acceptance Fee in respect of such B/A. The Acceptance Fee payable by such the Canadian Borrower to a Canadian C $ Revolving Lender under this Section 2.22(e) 2.06 in respect of each B/A accepted by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(e)2.20.
(f) Each Canadian C $ Revolving Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all B/As accepted and purchased by it.
(g) If a Canadian C $ Revolving Lender is not a chartered bank under the Bank Act (Canada) or if a C $ Revolving Lender notifies the Canadian Administrative Agent in writing that it is otherwise unable or unwilling to accept Bankers’ ' Acceptances, such Lender will, instead of accepting and purchasing Bankers’ ' Acceptances, purchase from the applicable Canadian Borrower a non-interest bearing note that does not bear interest during the Contract Period (a “"B/A Equivalent Note”"), in the form of Exhibit KJ, issued by such the Canadian Borrower in the amount and for the same term as the draft that such Lender would otherwise have been required to accept and purchase hereunder, at a purchase price calculated on the same basis as Bankers’ ' Acceptances are discounted pursuant to this Agreement. Each such Lender will provide to the Canadian Administrative Agent the proceeds of such purchase for the account of the applicable Canadian Borrower. The applicable Canadian Borrower will, upon purchase of a B/A Equivalent Note, pay to the Canadian Administrative Agent on behalf of the Canadian C $ Revolving Lender that purchased from such the Canadian Borrower the B/A Equivalent Note an Acceptance Fee in respect of such B/A Equivalent Note. The Acceptance Fee payable by such the Canadian Borrower to a Canadian C $ Revolving Lender under this Section 2.22(g2.20(g) in respect of each B/A Equivalent Note purchased by such Lender shall be set off against the Discount Proceeds payable by such Lender under this Section 2.22(g2.20(g).
(h) With respect to each B/A Borrowing, at or before 10:00 a.m., Toronto time, two one Business Days Day before the maturity date of such B/As, the applicable Canadian Borrower shall notify the Canadian Administrative Agent at the Canadian Administrative Agent’s 's address set forth in Section 9.01 10.01 by irrevocable telephone notice, followed by a notice of rollover on the same day, if such the Canadian Borrower intends to issue B/As on such maturity date to provide for the payment of such maturing B/As. If the applicable Canadian Borrower fails to notify the Canadian Administrative Agent of its intention to issue B/As on such maturity date, such the Canadian Borrower shall provide payment to the Canadian Administrative Agent on behalf of the Canadian C $ Revolving Lenders of an amount equal to the aggregate face amount of such B/As on the maturity date of such B/As. If such the Canadian Borrower fails to make such payment, such maturing B/As shall, subject to satisfaction of the conditions set forth in Section 4.02, be deemed to have been converted on their maturity date into a Canadian Prime Rate Loan in an amount equal to the face amount of such B/A as provided in Section 2.07 and such the Canadian Borrower shall on demand pay any losses, costs or penalties that may have been incurred by the Canadian Administrative Agent or any Canadian C $ Revolving Lender due to the failure of such the Canadian Borrower to make such payment.
(i) Each The Canadian Borrower waives presentment for payment and any other defense, in respect of a B/A accepted and purchased by it pursuant to this Agreement, that might exist solely by reason of such B/A being held, at the maturity thereof, by such Lender in its own right and each the Canadian Borrower agrees not to claim any days of grace if such Lender as holder sues such the Canadian Borrower on the B/A for payment of the amount payable by such the Canadian Borrower thereunder. On the specified maturity date of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the applicable Canadian Borrower shall pay, through the Canadian Administrative Agent, the Canadian C $ Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A and after such payment, such the 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.
(j) If a Canadian C $ Revolving Lender grants a participation in a portion of its rights under this Agreement to a participant under Section 9.04(f10.04(f), then in respect of any B/A Borrowing, a portion thereof may, at the option of such Lender, be by way of Bankers’ ' Acceptance accepted by such participant. In such event, the applicable Canadian Borrower shall upon request of the Canadian Administrative Agent or the Canadian C $ Revolving Lender granting the participation execute and deliver a form of Bankers’ ' Acceptance undertaking in favor of such participant for delivery to such participant.
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