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